Fakafanua v Fincomm B & R Development Tonga Ltd [2022] TOLC 6; LA 15 of 2019 (4 August 2022)

IN THE LAND COURT OF TONGA
NUKU'ALOFA REGISTRY

LA 15 of 2019

IN THE MATTER OF THE LAND ACT

BETWEEN:

KISIONE FAKAFANUA Plaintiff

-and-

[1] FINCOMM B & R DEVELOPMENT TONGA LTD
[2] MINISTER OF LANDS Defendants

JUDGMENT

BEFORE: ACTING LAND COURT PRESIDENT JUSTICE AFEAKI
Assessor: Mr S. Tu’ifua

Counsel: Mrs A. Tavo-Mailangi for the Plaintiff

Mr W. Edwards for the First Defendant

Mr S. Sisifa Solicitor-General for the Second Defendant
Dates of hearing: 29, 30 November 2021
Date of judgment: 4 August 2022

Table of Contents

1. INTRODUCTION
   1. The Parties
   2. Preliminary matters
   100. The Claim basics

2. PARTIES’ PLEADINGS
   1. Plaintiff’s Statement of Claim
   2. First Defendant’s Amended Statement of Defence
   100. Second Defendant’s Amended Statement of Defence
        
3. CHRONOLOGY, SUMMARY OF FACTS
   
   1. Chronology
   2. Summary of facts and analysis

4. THE EVIDENCE
   1. The Plaintiff, Mr Fakafanua
   2. The Second Defendant witness, Mr Moala
   100. The Second Defendant witness, Mr Ma’ilei
        
5. LEGAL SUBMISSIONS
   1. Plaintiff’s submissions
   2. First Defendant’s submissions
   100. Second Defendant’s submissions
   4. Plaintiff’s Reply
      
6. RESULT
   1. Orders
   2. Costs
      

I. INTRODUCTION

[1] The Court acknowledges this year’s very difficult start with the Hunga eruption and peaukula in January and state of emergency. That was exacerbated by the lockdown following the February arrival of covid flu in the Kingdom with the state of emergency imposing disruptions to all goods and services, communications, legal and judicial services and economic activity. As we all face the challenges before us, the Court is grateful for closing legal submissions by counsel.
[2] This nature of this claim is complicated by the passage of time, various actions, reactions, mistakes, apparent misunderstandings and miscommunications. It involves multiple parties and reflects the numerous aspects of changes in parties, counsel and interactions over the years.
[3] Part of the complexity of this matter includes that the pleadings include claims, defences, amendments and responses, with complications arising to be considered and dealt with as appropriate. The nature of a multi-party proceeding also entails certain factual matters, arguments, application of rules and interpretations of them often being repeated by the three parties themselves having raised them in different ways, at different junctures of the case. This has necessitated attention to the intense detail which arises in the parties’ varied approaches. In considering the above, where it has been possible, repetition has been avoided in this decision.

A. The parties

[4] The plaintiff, Kisione Fakafanua is a businessman of Ma’ufanga.
[5] The first defendant is a company registered in Nuku’alofa.
[6] The second defendant is the Honourable Minister of Lands of His Majesty’s Government.

B. Preliminary matters

[7] The Court notes that the plaintiff, since filing the original statement of claim in July 2019 (by Mr Pouono as counsel) has filed two amended statements of claim: in April 2020; then in June 2020 (by Mr Mo’ale as counsel); and then in August 2021 a Statement of Reply (by Ms Tavo-Mailangi). This is perhaps a reflection of at least in part, his having changed legal counsel a number of times, which of course is his right and this observation is not to be taken as a criticism. It is also apparently due to what may be described as an evolving state of awareness of his position and the purported rights he asserts as arising from those understandings.
[8] Other factors of course include the first and second defendants both filing defences, which the plaintiff then filed amended claims in response to.
[9] Before embarking on what would be a comprehensive and if so, necessarily convoluted analysis of all of the pleadings and counter pleadings the court will focus on the finalised pleadings and the substantive legal, procedural and evidential matters arising from them.
[10] The Court must also consider the matter of the plaintiff seeking leave after hearing to further amend his claim, which request was made by his counsel in her closing written legal submissions. As an interim comment the court notes that neither of the defendants made any submissions opposing the plaintiff’s somewhat irregularly timed request that the Court grant leave to further amend his claim after the evidential hearing was completed and obviously well after the pleadings had been closed. However, it is also appreciated that Counsel sought leave having heard what she interpreted to be the import of the second defendant’s witness, Mr Ma’ilei at hearing.
[11] Considering whether or not the interests of justice to all the parties are served by allowing the very late changes to his claim which are sought by the plaintiff, the Court finds that there being no complaint nor apparent prejudice to the defendants, leave to have accepted the late amendments to the claim sought is granted.

C. The claim and defences, basics

[12] The plaintiff seeks orders for specific performance that the second defendant, the Minister of Lands should recall and reissue registered Lease 7888 with corrected boundary peg details which conform to his understanding of where they should be located, as based on the plaintiff’s 2009 application to the Minister to lease the land to his company, Faua Development Limited.
[13] The first defendant’s amended statement of defence denies that the boundary marker pegs of Lease 7888 were incorrectly made and claims that the company has received the exact land area set out in the 2009 application for lease, as agreed to by the plaintiff. Without notice of any alleged defect in the title to the land they have paid for, they say that any adjustment of the lease boundaries now will prejudice them by encroaching their building.
[14] The second defendant’s defence in basic terms is that the plaintiff knew of the building located on his land in 2009 when he applied for lease number 7888 and the plaintiff should have disclosed to the Minister of Lands the fact of his building’s location on his land at that time, in effect straddling the two proposed lease lots, but he failed to do so.
[15] Further, the second defendant says that in 2015 the plaintiff consented to the amendment of the boundary to Lease 7888 when he applied for a new lease over the adjoining lot of his land, which shares a common boundary and is marked by properly located boundary pegs his officials had installed. This defence is underpinned by their assertion that the plaintiff did not object to the changed boundary shape of his leased lands at that time.
[16] The second defendant states that because there is a building on the land, that any re-adjustment of the boundary marker pegs will cause the boundary to encroach onto that building, which is prejudicial to the lessees.
[17] Further, the second defendant states that to avoid encroachment of the boundary onto the building on the land, the Ministry of Lands surveyor adjusted the boundaries and placed the boundary pegs into positions which would not encroach on buildings on either lease property and which would achieve almost exactly the same size of land for the first defendant’s Lease 7888 and its adjacent neighbouring lot, a separate company’s Lease 8807, but with resultant different shapes for both lots.
[18] The second defendant says that the survey and present location of the boundary pegs are proper and reasonable in the circumstances and this has avoided causing prejudice to either the plaintiff or the two lessees of his ‘api; Leases 7888 and 8807.

II. THE PLEADINGS

A. Plaintiff’s Statement of Claim (Mr Fakafanua)

The pleaded issues addressed by the plaintiff include:

[19] Notably, no allegations are made against the first defendant.
[20] The Statement of Claim alleges that the second defendant, the Minister of Lands:

1. through his officials, failed to carry out a correct survey of his land in compliance with Cabinet’s 2009 instructions in respect of the lot of land which became lease 7888; and
2. that following the plaintiff’s 2012 complaint about the boundaries and request to re-survey and correct the boundaries, his officials failed to correct the boundaries as requested; and

100. that as a result he has suffered prejudice by this.

[21] In para 7 of his Amended Statement of Claim, the plaintiff alleges that,

“The plaintiff consented to the specified areas as 34p(860M2) and the boundary pegs given as 81312, 81313, 81314, 41.562, 50.804.”

[22] In the plaintiff’s para 7 (i) particulars, he sources those allegations as being from “... the map (Part Plan of Lot 1 S/Plan 80/93-p3) that was submitted to Cabinet in May 2009 the whole town allotment was divided into 2 plots: (plot 1) is lease no. 7888 with 34 perches (860 m2) and (plot 2) is lease no. 8807 with 30 perches (759 m2).”

Preliminary Analysis

[23] The Court finds that this is the same map (CB 53) submitted together with the plaintiff’s application to lease to his company Faua Developments Limited in 2009.
[24] The Court further finds as a fact, that his para 7 list of “boundary pegs” list as “81312, 81313, 81314, 41.562, 50.804” is not correct. Only the first three are in fact boundary peg numbers. The last two are actually boundary distance measurements for the Northern and the Southern boundary of the ‘api. The numbers: 41.562, 50.804 are in fact merely recording the distance measured in metres between the outside boundaries of Mr Fakafanua’s ‘api kolo and not boundary pegs at all.
[25] This lack of accurate information or interpretation of information is part of the problem with the plaintiff and his counsel in the processes leading to this case. The application map CB 53 is a sketch map with boundary pegs at both ends of the whole ‘api kolo and an indicative, unmeasured hand-drawn line across it by an unknown person not identified to the Court by the plaintiff. As the evidence bore out, it fails to disclose the fact of a large two-storey building, which if shown on a properly prepared, measured, surveyed up-to-date sketch map, would have had shown the same indicative line drawn right through the Eastern 100 square metres of the building on the land at the time. This in itself would have raised ‘alarm bells’ for any Ministry officials looking at it, but it was not disclosed by the ‘api owner applying to lease the land to his own company.
[26] CB 53 is clearly a working sketch map, with the land yet to be surveyed and a complete survey map by an official, suitably qualified professional surveyor. Until that survey was done, the map was only notional and not complete. This is especially so given the large building later discovered on the land by the surveyor.
[27] In his para 7 (ii) particulars, the plaintiff provides a table entitled “The boundary marker pegs” in which the left column has the 2009 details, lot area and boundary marker pegs comparing the above three pegs and it again mistakenly names the boundary distance measurements in the 2009 sketch map as boundary pegs. It records the shape of the block as “rectangular like”. In the table’s right column are the details of registered Lease 7888 of 26 August 2010, a list of boundary pegs showing the three new pegs numbered: 100381, 100362 and 100221 as well as two remaining earlier pegs: 81313 and 81314. It records the shape of the block as “square like”.
[28] The Court raises the inaccuracies in the plaintiff’s pleadings at this early stage because they form the basis on which the allegations made must be proven by evidence to be weighed. These assumptions underpinning the assertions of boundaries are at the outset, unreliable.

Remainder of Plaintiff’s claim

[29] He alleges that in 2012 he complained to the Ministry about the boundary errors, wrote to the Minister to request correction, but to no avail.
[30] He records the Minister’s 2012 direction to re-survey the leased land and Mr Ma’ilei’s survey of it in August 2012.
[31] At para 14 the plaintiff alleges that due to the error in Lease 7888 he has lost investment opportunities.
[32] At para 15 the plaintiff alleges that it is in the best interests of all the parties to have the correct boundary so that all parties’ investments in the property are protected. He lists particulars of prejudice as;

• 32.1 The plaintiff has spent a lot of money on lawyers and surveyors to correct the boundary markers;
• 32.2 The first defendant is currently occupying part of plot 2 without paying any rent for that part because of the wrong boundary markings of both plots;
• 32.3 The current area of plot 2 is less than 30 perches and the lessee is reluctant to increase its annual rent payment; and
• 32.4 Future leases will be affected due to the wrong shapes of plot 1 and plot 2.

Plaintiff’s relief sought

[33] The plaintiff asks that the Court make orders for specific performance that the Minister of Lands correct the boundary marker pegs of Lease 7888 as originally approved by Cabinet and the Minister.
[34] The plaintiff further pleads that the Court should order that the Minister should then re-issue a corrected Deed of Lease 7888.
[35] The plaintiff claims that the defendants’ defences should be dismissed and that costs should be awarded against them.

B. First Defendant’s Defence

[36] The first defendant’s 9 July 2021 amended statement of defence denies that the boundary marker pegs of Lease 7888 were incorrectly made and claims that the company has received the exact land area set out in the 2009 application for lease, as agreed to by the plaintiff.
[37] The first defendant’s defence in basic terms is that they are a lessee without notice of any later alleged defect to the lease they had received in good faith from and consented to by the plaintiff, for which they have paid rent in good faith.
[38] The plaintiff does not make any allegations of prejudicial actions by, nor any claim against the first defendants.
[39] The first defendant pleads that they and the other lessee of the adjoining lease, received exactly the land which they applied to the Minister of Lands for lease of and that the plaintiff consented to that.
[40] In denying any prejudice alleged in paras 14 and 15 of the plaintiff’s claim, the first defendant states that they have already commenced construction on their leased land and the plaintiff’s claim seeking to move the boundary pegs will result in injustice to the first defendant. If the boundaries were to be moved, the first defendant alleges that their present building will end up on International Metropole Corporation’s land next to them, which will result in significant damage to the first defendant.

C. Second Defendant’s Amended Statement of Defence of 2021

[41] The second defendant’s defence is that the plaintiff knew of the building on his land in 2009 when he applied for Lease 7888 from himself to Faua Development Limited and that an amendment to the boundary of Lease 7888 was to be done accordingly before the lease was registered.
[42] The defence continues that in 2015 the plaintiff had consented to the amendment to the boundary of Lease 7888 when he subsequently consented and entered into a new lease with the first defendant. The plaintiff had demonstrated that he had no objections to the amendment to the boundary.
[43] The second defendant states that because there is a building on the land, that any re-adjustment of the boundary marker pegs will cause the boundary to encroach onto that building. That will prejudice the holder of that lease and owner of that building.
[44] The second defendant’s position is that he has not prejudiced the plaintiff in any way.

III. CHRONOLOGY AND SUMMARY OF FACTS

A. Chronology
Key: Court Book = “CB” with page number

March 1996	- Minister of Lands grants Deed of Grant of Allotment to plaintiff, Mr Fakafanua (CB 86-87)
2009	- 16 March. Faua Development Limited and Plaintiff apply to Minister of Lands to lease a section of the Plaintiff’s town allotment land to Faua Development Limited (“FDL”). The Plaintiff is listed as “Director, Faua Development Limited” and signs both as applicant director of FDL and as grantor of the lease, K L Fakafanua (CB 52). The application disclosed in the Court Book as “Attachment 1” of the plaintiff’s evidence is the sketch map, described as Part Plan of Lot 1 S/Plan 80/93 provided to the Minister with the application to lease (CB53). The sketch map shows only three boundary pegs marked on the shaded subject lot of land noted as 34 perches/860 square metres as follows: Sou-West: 81312 Nor-East: 81313 North: 81314 [** The Court notes that on this map, although there are the above listed three boundary pegs showing the Eastern, Nor-Eastern and Northern boundaries, there are no boundary pegs demarcating the Western and Southern ends of the lot.] - 27 April. Hon Minister of Lands, submits application and recommendation to Cabinet (CB 88) - 12 May. His Majesty’s Cabinet approves in CD371/09 application for grant of lease from the Plaintiff to FDL of 34 perches of the town allotment for 50 years for commercial purposes, to be effective from the date of registration (CB 54) - 15 May. Ministry of Lands (S Fotu) writes to the Director of FDL (and copied to the Plaintiff) of Cabinet approval 371/09 of 34 perches being part of the town allotment for 50 years for commercial purposes, to be effective from the date of registration (CB 55). He adds: “The Ministry will execute all survey requirements for the said lease before registration. Should you need further clarification of this matter please do not hesitate to contact the undersigned.” - 15 May. Minister of Lands instructs officials to “Please survey and sketch” the land “according to the map attached to this letter” referred to as Lot 1 S/Plan 80/93 and concludes: “When work is completed then sketch and prepare the Deed of Lease for registration.” from Plaintiff to FDL which was approved and to prepare sketch map deed of lease. (CB 89, 90) - 15 May. Ministry surveyor Mr Mai’lei visits the plaintiff’s land to conduct survey on the lot for the lease. He discovers an existing building on the land (the “Western lot”, or what later becomes Lease 7888) encroaches in an easterly direction onto the neighbouring lot (the “Eastern lot”, or what later becomes Lease 8807). He then extends the eastern boundary of the Western lot to include sufficient land on which the building stands and creates a narrow strip corridor for the Eastern lot at the southern end of Western lot (Lease 7888) to make up for the land taken from the Eastern lot to accommodate and not encroach the existing building, which would have happened if he left the building included to ‘straddle’ both the Western and Eastern lots - Mr Ma’ilei surveys actual locations and installs boundary pegs to create almost exactly the intended land size (34 perches or 859.9 square metres) to regularise the arrangement for which he had been directed by the Minister to survey and sketch a map
2010	- 7 July. The boundary pegs on the lot in Mr Ma’ilei’s survey map of this date are (document CB 49A adduced by Mr Ma’ilei at hearing) as follows: Sou-East: 81313 North: 81314 Nor-East: 100362 Sou-East: 100221 Sou-West: 100381 - 26 August. Deed of Lease 7888 for 50 years issued to Faua Development Limited for “an area of 859.9 m2 and being Lot 1 on survey office plan 80/93-P3 and listing Boundary Pillars (pegs) 100381, BP 81313, BP 81314, BP 100362 and BP 100221...” (CB 56). The Deed of Lease sketch map showing the property, survey location readings, boundary measurements and the same numbered boundary pegs is at page 3 of the Deed (CB58). [** The Court notes these are the same boundary peg numbers as per Mr Ma’ilei’s evidence at (CB 49A]
2011	- 2 November. D Stephenson, lawyer for Faua Development Limited (FDL) in Court-appointed receivership of K Tupou upon mortgage debenture enforcement proceedings by Westpac Bank and relying on the orders of the Lord Chief Justice dated 29 July 2011, writes to Minister of Lands seeking that he recommend to Cabinet a transfer of Lease 7888 to Cowley Accommodation Limited who had won the bid to purchase the leasehold and pay the bank. (CB 91-92) - 24 November. Mr Laki Niu (as His Honour Niu J then was), writes to the Minister of Lands as lawyer for the plaintiff and his company, FDL, whom he describes as belonging solely to the Plaintiff. He advises that his client disputed Westpac Bank’s rights to enforce their unregistered mortgage interests in the land and that his client had lodged an appeal of the then Lord Chief Justice’s July 2011 decision, which was due to be heard in April 2012. (CB 93)
2012 2012 cont’d 2012 cont’d 2012 cont’d	- 1 March. S Fotu writes Chief Registrar, Supreme Court to ask about status of Plaintiff’s appeal of LA 1/2011 and whether he had filed an application for a stay of proceedings. (CB 94) - 18 April. Mr Niu writes to Minister of Lands noting that the advising that the Plaintiff’s appeal is withdrawn, requesting a correction of the deed of lease prior to transfer of Lease 7888 to the purchaser. He requests a resurvey and shifting of the boundary peg 100362 (at the North East corner) toward the West, to “Redraw the diagram of the leased land on the deed of lease accordingly.” (CB 95-96) [**The Court notes that copies of his letter attachments: “Diagram A” and “Diagram B” were not attached to the documents filed with the Court. The letter makes no mention of the actual location of the large existing building on the land, nor how this might be affected.] - 9 May. MOL Principal Land Registration Officer, S F Uele writes an internal memorandum to the Minister of Lands reporting on plaintiff counsel’s 18 April letter (CB 97-100). Mr Uele provides his analysis of the plaintiff’s argument, mentioning the 2009 Cabinet approval of the lease application and that at para 3, the: “subdivision that should have been done was to take 34p of land from the western side of Kisione’s parcel of land running from South to the North.” At para 4 he states that: “A review of the application form and cabinet decision on which the lease application was made and Laki and Kisione are absolutely right. The subdivision was done in an absolutely different look from the lease application although the area is the same.” He proposes that the Ministry renew the lease “according to the sketch (location of the Lease) which was approved by Cabinet. Issue a new deed of lease for Lease 7888” [** The Court notes that this report makes no mention of the location of the large existing building on the land or where it stands in relation to the boundaries. The report does not mention whether or not he, as Principal Land Registration Officer had asked the Ministry surveyor, Mr Ma’ilei who had conducted the survey on the land.] - 30 May. D Stephenson, lawyer for the Receiver of FDL writes to the Minister of Lands advising that she is aware of the boundary dispute in relation to Lease 7888 and that if moving the boundary “a small distance westward” would not affect the building erected on the land, then FDL would not object, stating: “If this adjustment is to have no effect on the Roadhouse building erected on the land, then FDL has no objection to this request.” However if the effect of moving the boundary in the manner suggested by the plaintiff will place the Eastern wall of the building over the boundary line of Lease 7888, in her view the building on her client’s land would be rendered worthless and FDL would formally object to the plaintiff’s request to change the survey boundary. She adds at para 4: “Given that Mr Fakafanua was actively involved in the transactions for the purchase of the Roadhouse building by FDL from his (other) company Vuna Developments Limited - and Mr Fakafanua granted the lease to FDL in conjunction with that purchase, he was at all times fully aware of FDL’s requirement that the lease be for the area of land upon which the building was erected. FDL would not have entered into the arrangements for the purchase of the Roadhouse building and related business assets from Mr Fakafanua’s other company Vuna Developments Limited for the sum of $650,000, if Mr Fakafanua had not agreed to lease to FDL the land upon which to building is erected.” Ms Stephenson concluded that: “In conclusion, the purpose of this letter is to formally note the objection of the registered lessee of Lease 7888, to Mr Fakafanua’s request that the survey boundary be changed in the event that it is confirmed by your office that the requested change will affect the existing building on the land.” (CB 101-102) - 18 June. Acting Secretary for Lands, Mr F Vea writes to Mr Niu replying to his letter of 18 April seeking correction of the boundaries and referring also to FDL’s Receiver’s lawyer Ms Stephenson’s letter of 30 May. Mr Vea writes that the surveyor who undertook the survey work advised: “that the correction and area specified ... will definitely affect part of the Roadhouse building. It was this encroachment on the building that caused the surveyor to change the original design of the leased area, which consequently resulted in the current date of lease.” Mr Vea suggested that the Ministry “carry out a detailed survey of the leased area so that the extent of the encroachment on the building is determined.” (CB 59) - 22 June. The Minister of Lands writes a savingram to the Secretary of Lands Ref 3/1/1 Maf entitled “REDO NEW SURVEY OF LEASE 7888 AT MA’UFANGA”. The Minister writes: “Please redo new survey of Lease 7888 - Faua Developments Limited at Ma’ufanga. The lessor of this lease (allotment holder) Kisione Lele’afafine Fakafanua has complained it is also he who owns the Lessee (Faua Developments Limited) regarding the changing of the location of Lease 7888 by the department as a result of a subdivision carried out by Survey. It is therefore been proven that the complaint is correct that the location of the lease after the survey is absolutely different according to the location which was submitted in the lease application approved by Cabinet in CD371 – 12/5/2009 although the area is the same. Please have the survey comply with the map of the Lease attached to this letter and do not change anything. After completion of the survey then prepare the map for registration and take note to confirm that the map is examined according to the location stated in the instruction.” [** The Court notes that no copy of the map referred to as an attachment to the Minister’s savingram was filed with the Court. In the absence of any attachment or any evidence to the contrary the logical deduction and Court finding is that the “map of the Lease” provided to the officials with the savingram instruction was in fact the map in the last page of the registered Lease 7888 of 26 August 2010 (CB58), which map was from the survey undertaken by Mr Ma’ilei on 15 May 2009 (CB 48, paras 4 – 7)] - 16-24 August. In response to the Minister’s instructions to redo the survey, Ministry Surveyor Mr G Ma’ilei conducts another full survey of that land comprising Lease 7888. (CB 104-105) in the report section headed “Technical Problem Encountered” he writes: “Obstruction on boundary lines between corner markers causes positions of traverses/plan to be placed as on the sketch, however accuracy of the survey was still maintained despite several small differences in bearings comparisons and distance varies due to using of electronic equipment.” The survey map at page CB 105 shows detailed workings, measurements and bearings with the final result confirming the same boundary peg locations and 34 perches / 859.9 square metres of land he had listed from his earlier surveys of that land in 2009 and 2010, namely: Sou-East: 81313 North: 81314 Nor-East: 103252 Sou-East: 103673 Sou-West: 103675
2015	- 23 June. International Metropole Corporation Limited (“IMC”) apply to the Minister of Lands for a lease of 758.8 square metres of the plaintiff’s ‘api for 30 years at $1,000 per annum. Mr Fakafanua co-signs the application as ‘Grantor’. (CB 62) Attached to that application is a sketch map of the land, Lot 1A Plan 80/93-P3 showing the plaintiff’s subdivided lot with the subject land located at the adjacent Eastern and Southern edges of Lease 7888. It is a roughly ‘L’ shaped lot with the following boundary pegs shared with Lease 7888 (CB 63): Nor-East: 100362 Sou-East: 100221 Sou-West: 100381 [** The Court notes that upon registration this lot becomes Lease 8807] - 26 June. Chief Secretary to Cabinet writes to Ministers informing them in CD 691/15, “Pursuant to Schedule IX (form No.3) of the Land Act, Cabinet grants its consent to the transfer of Lease No. 7888 from FDL (In Receivership) to International Metropole Corporation Ltd. (CB 64) - 26 June. By CD 692/15, Cabinet approves, pursuant to Section 19(3) of the Land Act... granting a lease from the plaintiff to International Metropole Corporation Ltd for the land lease of 758.8 m2, being Lot 1A Plan 80/93-P3 (D/G 343/56) (CB 65). [** The Court notes that upon registration this land becomes the legal description of Lease 7888’s Eastern/Southern neighbouring Lease 8807] - 23 July. Minister of Lands writes savingram to Secretary for Lands instructing the officials to survey and sketch the lease application land from the plaintiff to IMC for the remaining lot of land, being the 758.8 square metres next to Lease 7888.
2016	- 2 March. Lease 8807 issued to IML (CB 86-68) for 30 years
2018	- 24 July. Ministry of Lands official, Mr SF Uele writes to the plaintiff in a letter entitled “Rental Revision of Lease No. 7888 at Ma’ufanga” advising him that Cabinet in Decision CD 427/18 dated 18 July 2018 “approved to increase annual rental of Lease No. 7888 from $100.00 to $8,600 pa with effect from 26.8.2015. The letter was copied to International Metropole Ltd care of legal counsel, S K Vaipulu. (CB 69) - 7 December. Indenture of Lease transfers Lease 7888 from FDL (In Receivership) to IMC, which upon registration becomes Lease 7888A (CB 108-109)
2019	- 12 March. Indenture of Lease transfers Lease 7888A from IMC to Fincomm B & R Development Limited, which upon registration becomes Lease 7888B (CB 110-111)
2019	- 1 August 2019. Plaintiff issues a Writ of Summons and Statement of Claim against the defendants. Defences filed
2020	- Amended claim, defences, interlocutories
2021	- Amended defences filed. Hearing 29, 30 November
2022	- January. Closing Legal Submissions Filed - March. Hearing transcripts typed

B. Summary of Facts

[45] On 28 March 1996, the then Hon. Minister of Lands granted a Deed of Grant of Allotment to the plaintiff, Mr Fakafanua which was duly registered. This comprised 1612 square metres of land registered in the Ministry Register as Tohi 343, Folio 56, more particularly described in the ‘Ma’ufanga SIPLAN 80193-p3 LOT in the Ministry’s Survey office (refer to Court Book (“CB”) pp 86, 87). This ‘api fronts Hala Vuna in Ma’ufanga is the ‘parent’ block of land which was later subdivided into two lots which form the subject matter brought before the Court.
[46] By application dated 16 March 2009, the plaintiff applied to the second defendant (Minister of Lands) to lease a portion being a lot of 34 perches of the land to his company, Faua Development Limited (“FDL”) for 50 years for commercial purposes (CB 52). Attached to the application was a sketch map of the property to be surveyed in Lot 1 S/Plan 80/93 provided to the Minister (CB 53) [**The Court notes that for full details refer to the ‘Chronology’ of documentary evidence adduced in the ‘Court Book’].
[47] On this application sketch map (CB53), although there appear three numbered boundary pegs showing boundaries. They are the Western: peg 81312, Nor-Western: peg 81313 and Northern: peg 81314.
[48] There are no boundary pegs demarcating the Eastern and South-Eastern ends of the lot. However, sketch map (CB53) shows two boundary length measurements which run in an East-West direction, one to the North verging on Vuna Road: measuring 41.652 metres and the other to the South of the ‘api: measuring 50.804 metres, abutting the land to the South. For clarity’s sake, these two boundary measurements are not boundary pegs.
[49] Further, the sketch map shows a line which appears to divide the ‘api into two roughly rectangular lots; 34 perches in the Western lot (7888) and 30 perches in the Eastern lot (8807).
[50] As noted, at para 7 of the plaintiff’s further amended statement of claim dated 10 June 2021 he lists at the left hand side of a table entitled “The boundary marker pegs”, what he alleges Cabinet approved. It records the (Western peg) “81312”, (Nor-Western peg) “81313” and (Northern peg) “81314”. Below that it also lists: “41.652” and “50.804” which are the measurement of metres of the Northern and Southern boundaries of the whole ‘api. Those two numbers are not boundary pegs.
[51] Some confusion has arisen from the 2009 sketch map used in the plaintiff’s application to lease, that has been taken as a definitive map from which everything subsequent was somehow meant to conform. The Court finds that this is not the case. The Boundary pegs to the West and North-West of the subject land are the same. The boundary length measurements of the North and South are not to be mistakenly taken as being definitive boundary pegs. They are merely measurements of an entire ‘api boundary.
[52] The salient point of this finding is that the application survey map was indicative, not definitive because it was still incomplete with survey of the actual land to be carried out and further boundary pegs installed after that.
[53] The evidence shows that the Minister himself instructed his officials to survey and sketch the land and prepare a survey map for the Deed of Lease.
[54] On 27 April 2009 the then Minister of Lands, Hon. Tuita Toluafe submitted to His Majesty’s Cabinet a recommendation that the plaintiff’s application be considered and approved.
[55] On 12 May 2009, in in CD371/09, Cabinet approved application for grant of lease from the Plaintiff to FDL of 34 perches of the town allotment for 50 years for commercial purposes, to be effective from the date of registration (CB 54).
[56] On 15 May 2009, the Mr S Fotu of the Ministry of Lands wrote and advised Director of FDL (and copied to the plaintiff) of Cabinet approval 371/09. He also advised that: “The Ministry will execute all survey requirements for the said lease before registration. Should you need further clarification of this matter please do not hesitate to contact the undersigned.” [Court emphasis added]
[57] On the same day, the Minister of Lands instructed his officials to “Please survey and sketch” the land “according to the map attached to this letter” Lot 1 S/Plan 80/93 and concluded: “When work is completed then sketch and prepare the Deed of Lease for registration.” [Court emphasis added]
[58] On that same day, 15 May 2009, the Ministry’s most experienced surveyor[1], Mr Mai’lei visited the plaintiff’s land to survey the lot for the lease. He discovered an existing building on the land shown in the already mentioned application sketch map (CB 53).
[59] This building Mr Mailei inspected was located on the Western side of the ‘api, which later became registered as Lease 7888. He found that the building encroached in an Easterly direction onto the neighbouring lot; the Eastern side of the plaintiff’s ‘api, later known as registered Lease 8807.
[60] To avoid encroaching on the Eastern neighbouring lot, Mr Ma’ilei then calculated, measured and extended the eastern boundary of the Western lot to include sufficient land on which the building stood. He created a narrow strip ‘corridor’ for the Eastern lot at the southern end of Western lot (Lease 7888) to make up for the land taken from the Eastern lot to account for the building. In this way, he accommodated and did not encroach the existing building, which would have happened if he left the building included to ‘straddle’ both the Western and Eastern lots.
[61] During Mr Ma’ilei’s evidence, when asked if he did not adjust the boundary, how much encroachment of the building onto the adjoining land would have been affected? He answered “One hundred (100) square metres.” One hundred square metres of a building is a very significant scale indeed and this shows how much of a problem he faced as the surveyor on the ground doing the actual scientific measurements. He therefore created a solution.
[62] Mr Ma’ilei surveyed the actual locations and eventually installed boundary pegs to create almost exactly the intended land size of 34 perches or 859.9 square metres to regularise the arrangement which he had been directed to do by the Minister; survey the land and sketch a map to be used in the Deed of Lease. The boundary pegs he recorded as a result were:

• 62.1 South-East: 81313 (peg already in place from earlier surveyor)
• 62.2 North: 81314 (peg already in place from earlier surveyor)
• 62.3 North-East: 100362 (new peg installed by Mr Ma’ilei)
• 62.4 South-East: 100221 (new peg installed by Mr Ma’ilei)
• 62.5 South-West: 100381 (new peg installed by Mr Ma’ilei)

Deed of Lease Completed, Signed and Registered 2010

[63] On 26 August 2010, the Deed of Lease 7888 for 50 years was signed and issued to Faua Development Limited for “an area of 859.9 m2 and being Lot 1 on survey office plan 80/93-P3 and listing Boundary Pillars (pegs) 100381, BP 81313, BP 81314, BP 100362 and BP 100221...” (CB 56). The Deed of Lease sketch map showing the property, survey location readings, boundary measurements and the same numbered boundary pegs is at page 3 of the Deed (CB58).
[64] The Court notes that these are the same boundary peg numbers as per Mr Ma’ilei’s evidence and they all coincide with the new lease survey map dated 7 July 2010, which he produced to the Court at hearing (CB 49A).

Mr Fakafanua complains to the Minister of Lands in 2012

[65] In 2012 the plaintiff complained to the Minister of Lands that the survey was not done in accordance with the survey map attached to his 2009 application to lease to FDL, which Cabinet had approved.
[66] The Minister then wrote the Savingram to his officials advising that the original survey in 2009 was in error. He directed his officials to re-do the survey in accordance with the original 2009 Cabinet decision and Lease map and report back to him upon completion of the further survey.
[67] However, apparently due to ongoing separate litigation between the plaintiff and other third parties (creditors and receivers), he did nothing further and the Ministry of Lands proceeded to register the other adjoining lot lease in 2016.

IV. THE EVIDENCE

A. The Plaintiff

[68] At hearing, the plaintiff, Mr Fakafanua gave evidence led by his counsel, Mrs Tavo-Mailangi.
[69] The plaintiff filed an initial brief of evidence dated 10 September 2021 (CB 42-43).
[70] Following affidavits filed by officials of the second defendants, Mr Moala (CB 45-47) of 1 October 2021 and Mr Ma’ilei (CB 48-49) of 12 October 2021, the plaintiff filed a brief of evidence in reply to Mr Moala’s evidence dated 18 October 2021 (CB 50-51).
[71] In his evidence, Mr Fakafanua sought to set out what he intended to do with his land (his ‘api kolo), why he had done so and with whom.
[72] He said that construction of the building on the land started in 2006, meaning it was there in place on the land well before his 2009 application to lease to his company, FDL.
[73] Mr Fakafanua acknowledged that there was an existing building on the land at the time of his 2009 application to lease the subject Western lot to FDL.
[74] He testified that in 2012 he became aware of a difference between the initial sketch map showing the shape of the land in his application to lease and what shape the land became in the map in the Deed of Lease registered on 26 August 2010.
[75] He complained to the Ministry of Lands in 2012 demanding that they cancel Lease 7888, correct and reissue it.
[76] He complained that the Ministry officials did nothing to correct the errors he complained of for the six years between 2012 and 2018.
[77] He said it was not until 16 April 2018 that he (the plaintiff) heard that in June 2012, the Minister of Lands had already directed his staff to amend and correct the map for Lease 7888.
[78] He expressed great disappointment that the officials had not done anything to amend and correct the survey map. He alleged that there was some intention to “mislead and deceive” him with the incorrectly drawn map.
[79] He stated that during 2015 Lease 7888 was transferred from his company FDL (which was then in receivership) to International Metropole Limited and at around that time he lodged a caveat against that Lease.
[80] He said that between 2010 and 2015 International Metropole Limited (“IML”) had used the land to build a two-storey building and was using it for business. Therefore he asked the Minister of Lands to review the annual lease payments upwards from $100 per year to $8600. Cabinet approved his request with effect from 2015.
[81] The plaintiff also adduced evidence that in 2015 he applied for a lease of the Eastern lot of his ‘api to IML and that application and attached survey sketch map of an “L” shaped lot of land of 758.8 square metres were signed by him as lessor on 23 June 2015 (application at CB 62, sketch map CB 63). The relevant boundary pegs on that map are 100362, 100221 and 100381 because they form the boundary with the neighbouring subject lot.
[82] The documents in the Court Book show that the plaintiff entered into a lease for 30 years with IML, Lease 8807 at the Eastern side of his ‘api. He said that construction of a building commenced on that land. The Court notes that documentary evidence before it shows that Lease 8807 dated 2 March 2016 is to be found at CB 66-68 with a survey map shown at page 68, recording the size as 758 square metres and that lot is clearly an ‘L’ shape.
[83] The Court also notes that Lease 8807’s survey map on page 68, records the boundary pegs demarcating the boundary with Lease 7888 as:

• 83.1 100362 North-East;
• 83.2 100221 South-East; and
• 83.3 100381 South-West.

[84] Importantly for the purposes of this case, the Court finds that those are the same three boundary pegs used in Deed of Lease 7888 to the immediate West of Lease 8807, which are evidenced (recorded at CB 56), and depicted graphically on the survey map on page CB 58. In short, these are the common boundary pegs between the plaintiff’s two lots subdividing his ‘api.
[85] The plaintiff stated that during 2019 (or possibly later), he found out that IML had transferred Lease 7888 to Fincomm B & R Development Limited, which company demolished the two-storey building and started constructing a large building.
[86] During 2020, the plaintiff says he entered the building on the premises, then known as ‘Noah Bar’ (formerly ‘Roadhouse’) and evicted the lessee for non-payment of annual rental. He says he later settled that dispute with IML and he allowed them to return to the premises. There appears to be some inconsistency in the witness’ recollection about the actual timing of this eviction and when the building was demolished, but it appears that at some time following his re-entry and reinstatement of the lessee to the land, that the large new construction project commenced on the lot.
[87] As a witness, the plaintiff’s answers in evidence were complicated by his interpolations and descriptions that intervening factors and actions by other third parties manifested their ulterior motives or lack of integrity. He also sought to attribute blame to various of his previous lawyers, saying for example that the lawyers handled certain matters, that he did not know about things which happened or that they took action and filed documents without reference to him. In respect of some of those documents, such as his application to lease, it transpired under questioning that he had in fact signed the documents and his lawyers had submitted them to the government. The Court finds that it is not necessary to consider the merits of many of those matters because of either the lack of credibility of his evidence or that they are not relevant to this case.
[88] One aspect of the situation which became apparent is that his business dealings via his two companies, Faua Development Limited and Vuna Developments Limited encountered difficulties, the precise nature of which were not divulged to the Court. The businesses failed, creditors became involved in enforcement proceedings, the leased lands on his ‘api were transferred to others and in the case of the first defendant, Fincomm B & R Development Limited, they became embroiled as a lessee by transfer to them of Lease 7888 and then as a defendant to this proceeding.
[89] In any event, during hearing, it was not suggested nor proven that the shape or size of both the plots of his leased land caused his business failures.
[90] The evidence established that rentals were payable to the plaintiff under both his leases: Lease 7888 ($8,600 per annum – see CB 69 for which Cabinet approved a rental increase to this amount); and for the adjacent Lease 8807 ($1,000 per annum – see CB 66) and that rentals would continue to be payable to the plaintiff for the terms of both leases.
[91] Mr Fakafanua’s main complaint was that the shape, but not the area of the land leased in Lease 7888 was different from that which he applied for and that despite his complaints about the difference in 2012, the Minister of Lands had not corrected the difference.
[92] From his evidence, it was difficult to understand what prejudice he had suffered other than having expended money on surveys and legal fees. He stated that: “If the corrections are not made..., my land will be severely affected from the different works of these big company’s [sic] that are currently leasing the land.” However, the Court notes that neither the first defendant nor others appear to have any complaint about the shape of the land they are leasing from the plaintiff and it appears that he is entitled to receive rentals for both lots under the leases.
[93] In this regard his amended statement of claim (CB 18-20) made allegations at paras 14, 15 that due to the error in the leased area he has lost investment opportunities, that the boundaries are affecting his lease rental payments, and that future leases will be affected due to the “wrong shapes” of both plots. However, during hearing he adduced no evidence in support of those allegations of prejudice.
[94] To the contrary, in respect of rents payable to him, his own evidence contradicts his allegation – in particular that upon his application, Cabinet in CD 427/2018 had approved an increased rental for Lease 7888 from $100 per annum to $8,600 per annum, effective from 28 August 2015 (CB 69).
[95] On the evidence before the Court, Deed of Lease 7888 term will run until 25 August 2060 (CB 56). A simple calculation of 38 years left to run from 2022 for the lease, multiplied by $8,600 amounts to a cumulative rental of $326,800 remaining payable to the plaintiff at the rate approved by Cabinet. The Court takes judicial notice of these relevant facts in the absence of any evidence adduced on this aspect by the plaintiff in terms of any loss.
[96] In Mr Fakafanua’s evidence he did not provide any alternative solutions to the admitted fact that on the two leased lots, there are in place two significantly large buildings and that they are located on surveyed lands which enable them to stand in those positions and not encroach each other.
[97] In the absence of any evidence to the contrary, under both Deeds of Lease, rentals are in fact payable to the plaintiff as ‘api holder for the duration of both terms.
[98] The Court finds that the plaintiff did in fact have actual knowledge of the layout of his own ‘api and of the existence of a building on it prior to the surveying of the land in 2009, when he applied for a lease of it to his own company. The building was constructed there by either himself or his partners, with his consent.
[99] It is difficult for the Court to accept his protests that he did not know, or that even if he did know, others were actually responsible for the building’s location and the consequences of it having been built there before a professional survey was done.

Communication problems and understandings

[100] Perhaps the plaintiff’s strongest argument was that the Ministry officials did not communicate properly with him or perhaps in a way he would have liked, in the period following his complaint in 2012. The Court Book documents record that the officials corresponded with the plaintiff’s then lawyer, Mr Niu and with the lawyer for the receiver of the plaintiff’s FDL company, Ms Stephenson through the period 2011, 2012. There is a lack of direct correspondence between them thereafter in evidence.
[101] In 2012 officials asked the surveyor himself for his account of what had happened and in 2012 the Minister himself instructed a re-survey of the land arising from the plaintiff’s complaint to him. Mr Ma’ilei then visited the land and conducted a full re-survey of the land using the Deed of Lease map, arrived at the same conclusion and affirmed his earlier decisions to re-draw and adjust the shapes of the lots, locate the boundary pegs in the same positions to avoid encroachment by the large building on the land.
[102] The plaintiff said that he received no communication of those decisions and actions until some time during 2018, by which time he had also applied for in 2015 and had granted in 2016 a lease of the second ‘L’ shaped lot to IML (Lease 8807).
[103] The Court finds that it is not credible for the plaintiff to now argue that he was not aware of the shape and size of the second lot in 2015 when he and IML applied for a lease of that land to IML, Lease 8807. He had legal counsel, he had signed the application and attached to that application was the survey map, complete with boundary pegs, dimensions showing an ‘L’ shaped piece of land. This is significant because in 2015 it was clearly different from the shape of the earlier 2009 map of the ‘api kolo.
[104] At this junction, the Court comments that the officials do not appear to have left a clear trail of communication with the plaintiff about this after 2012 and in the meantime a series of other legal proceedings appear to have arisen, which may partly explain a period of distraction and the breakdown in communications between the plaintiff and the Ministry about this matter. Correspondence between lawyers, officials and the parties during related litigation, including at least one appeal, has undermined clear understandings about this issue between the operative parties.
[105] However, this is not to say that communications can not be improved. It is clear from the evidence that improvements can be made on both sides of the divide, from the plaintiff himself and from the officials. Had better communication processes been in place, it might have avoided further waste of time, confusion and cost for all concerned.

The First Defendant’s cross-examination of the plaintiff

[106] During cross-examination Learned Counsel Mr Edwards for the first defendant Fincomm B & R Developments Ltd asked the plaintiff, “what did you lose as a result?”.
[107] To which the plaintiff answered, “A lot of my land was lost in trying to fight for this case. I released half of the lease of one allotment to conduct all the work here yet to save the other half for myself but it came to a point where I had to sacrifice the rest of the allotment to spend on lawyers that brought the matter to this day. I then had to crucify 8 acres in town. I have released these lands to fight this and those are my losses.”
[108] Mr Edwards then asked, “Did the first defendant cause that loss?”
[109] The plaintiff answered, “Na’e ‘ikai ke ‘iai ha ‘aku kaunga moe Fincomm he na’e ‘ikai ke ‘iai hama deal moe Fincomm, Fincomm na’a ne fakatau mei he pangike. Koe case koeni koau moe pangike pea koeha me’a ‘oku fakatonutonu ‘aki moe pangike. Koe me’a pe koe hu mai koe Fincomm koeni ‘o fakatau mei he pangike. ‘Ikai ha’a ku me’a against moe Siaina.” (I have no involvement with Finncomm because I wasn’t involved in any dealings with them. Finncomm bought this from the bank. This case I have with the bank is about what is to be done about correcting the bank. I have nothing against the Chinese.)
[110] To which Mr Edwards answered, “I appreciate your answer because you’ve effectively admitted that my client didn’t cause the issue nor did my client create the issue of the boundary that was set. But the issue is that for my client if the boundary is moved like you are asking for do you understand that the moving on the boundary line is likely to run the boundary through part of the building that is on the property now. That building is what four storeys?”
[111] The plaintiff answered, “Yes. But maybe my issue was trying to abide by the law and that is correcting from 2012 and this discussion will be made between me and the Chinese in trying to move a few things. However they are still going around with this unlawful map as I have mentioned.”
[112] From this exchange, the Court notes that the plaintiff confirmed that he did not seek to hold the first defendant responsible for causing the boundary issues complained of.
[113] At hearing, the Court found much of the plaintiff’s evidence unclear, obscure and often difficult to understand. Some of his answers to questions were irrelevant, lengthy, repetitive, evasive and vague. He often sought to blame others for decisions he is responsible for, saying he had no knowledge of them or for example disavowing having submitted his applications to the government, saying his lawyers had done it, yet not being able to deny his signatures on key documents.
[114] The plaintiff failed to provide a credible narrative to the Court for context about the circumstances of his knowledge of his land, his building on it and why he did not draw the attention of the Ministry of Lands to it. He gave very scant evidence about the dealings he had with third parties, although there appear to have been significant litigation and enforcement proceedings afoot. Such evidence might have been useful but he did not assist the Court in this regard.
[115] His lack of attention to significant details was apparent. To some significant extent he is the author of his own misfortune. Overall he was not a convincing witness in advancing his own account of events to prove his allegations.

2. Evidence of Second Defendant Witness, Mr Moala
   
   • [116] The Ministry of Lands’ Senior Lands Registration Officer, Mr Semisi Moala filed his brief of evidence dated 1 October 2021.
   • [117] He provided a narrative of the plaintiff’s 2009 application to lease part of his land to his company, FDL, Cabinet approval, Ministerial instructions to his officials to survey the area registration of the Lease 7888.
   • [118] During hearing, he was led by the Learned Crown Solicitor, Mr Sisifa. He testified in response to questions that the original survey map attached to the 2009 application (CB 53) was from a survey done in 1995 when the plaintiff was applying for his ‘api kolo. Relevantly when that map was submitted with the application to lease in 2009 it had not been updated to show any buildings on the block, after elapse of fourteen years. He said he could not find any other earlier survey maps of the land.
   • [119] He described how on 2 November 2011, Ms Stephenson, counsel for FDL in receivership wrote to the Minister of Lands requesting a transfer of Lease 7888 to Cowley Accommodation Limited. (CB 91, 92)
   • [120] He stated that on 24 November 2011, Mr Niu as he then was, as counsel for Mr Fakafanua wrote to the Ministry of Lands advising that he was the sole shareholder of FDL (and therefore the lessee) and had filed an appeal in the Court of Appeal against the Supreme Court’s decision in favour of Westpac Bank and its assertion of an equitable mortgage over Lease 7888. (CB 93)
   • [121] On 1 March 2012, the Ministry sought advice from the Registrar of the Supreme Court regarding Court procedures and whether Mr Fakafanua had applied for a stay of judgment in the Westpac case on appeal. (CB 94)
   • [122] On 18 April 2012, Mr Niu advised the Minister that Mr Fakafanua had withdrawn his appeal but requested that the Minister re-survey the boundaries of Lease 7888 before transferring it to any person. Specifically he requested that boundary peg 100362 be moved westward and re-positioned there, so as to conform with what he said his client had consented to. (CB 95) The Court notes that his lawyer’s letter made no mention of the location of the building on the land, nor any mention of an encroachment.
   • [123] On 9 May 2012, Principal Land Officer, Mr Uele submitted an internal memorandum to the Minister of Lands regarding Mr Niu’s request. (CB 97-100). Mr Uele’s review stated at para 3 that “A review of the application form and cabinet decision on which the lease application was made and Laki and Kisione are absolutely right. The subdivision was done in a absolutely different look from the lease application although the area is the same.”
   • [124] The Court notes that the plaintiff’s complaint and his lawyer’s letter follow only the documentary evidence contained in the application and map, with no mention of the existence of a large, two-storey building encroaching on the land. Likewise Mr Uele’s analysis is not based on the full information of the actual status of the land and the building having complicated matters. The lack of disclosure of the building’s location within the 2009 application sketch map continued to disrupt and in effect mislead the parties.
   • [125] On 30 May 2012, Counsel for FDL, Ms Stephenson wrote a comprehensive letter to the Minister objecting to the request from Mr Fakafanua to change the boundary, if that change would affect the building on the land, known as the ‘Roadhouse’. (CB 101-102)
   • [126] The Court finds Ms Stephenson’s letter useful in understanding some of the background to the dealings on the land. She advised that, “We are currently awaiting confirmation from Ms Bing of your office as to whether in fact the effect of moving the boundary in the manner suggested by Mr Fakafanua will place the eastern wall of the Roadhouse building across the boundary line of Lease 7888. If this is the case then the building on the land will be rendered worthless and as such FDL will formally object to Mr Fakafanua’s request that the survey boundary be changed.” [emphasis in the original]
   • [127] And she added, “Given that Mr Fakafanua was actively involved in the transactions for the purchase of the Roadhouse building by FDL from his company Vuna Developments Limited and Mr Fakafanua granted the lease to FDL in conjunction with that purchase, he was at all times fully aware of FDL’s requirement that the lease be for the area of land upon which the building was erected. FDL would not have entered into the arrangements for the purchase of the Roadhouse building and related business assets from Mr Fakafanua’s other company Vuna Developments Limited for the sum of $650,000 if Mr Fakafanua had not agreed to lease to FDL the land upon which to building is erected. It is only since the management of FDL has been removed from Mr Fakafanua and placed in the hands of a receiver by FDL’s lender, Westpac Bank of Tonga, that Mr Mr Fakafanua has raised the survey boundary line is an issue. His motives in doing so are clearly questionable and will if necessary be subject to formal legal challenge by FDL.”
   • [128] The Court notes that this evidence was lodged by consent in the Court Book and not contested at hearing, where Mr Moala read out the above extracts. The letter shows the plaintiff’s involvement in the detail of substantial dealings with the land in Lease 7888, the important fact of the two-storey Roadhouse building on the land at the time (in 2012) and the purchaser’s clear requirement that both the land and building be passed to him intact in return for $650,000.
   • [129] These are key factors in demonstrating the plaintiff’s understanding of the process, precisely where the land and the buildings were located and what was at stake. These were factors which the plaintiff himself did not raise with the Court, nor explain. Ms Stephenson’s letter was addressed to the Minister and copied to the plaintiff’s lawyer in reply to his (Mr Niu’s) letter to the Minister dated 18 April 2012.
   • [130] Mr Moala’s evidence continued that on 18 June 2012, Acting Secretary of Lands Mr Vea wrote to Mr Niu and said, “The letter relevantly noted that the surveyor who undertook the survey work in respect of Lease No. 7888, had advised the Ministry that the correction of the area specified in the lease application will definitely affect part of the Roadhouse building. It was the encroachment on the building that caused the surveyor to change the original design of the leased area, which consequently resulted in the current Deed of Lease.”
   • [131] The Court notes that Mr Vea’s letter continued to “suggest that the Ministry carry out a detailed survey of the leased area so that the extent of the encroachment on the building is determined.”
   • [132] Mr Moala continued that on 22 June 2012, the Minister issued a Ministerial Savingram, with direction to conduct a re-survey of Lease No. 7888 as requested by Counsel for the plaintiff and have the survey comply with the map of the Lease. (CB 103)
   • [133] The Court notes that the Minister concluded his instructions with the sentences, “Please have the survey comply with the map of the Lease attached to this letter and do not change anything. After completion of the survey then prepare the map for registration and take note to confirm that the map is examined according to the location stated in the instruction.” The Court notes that the map of the lease which the Minister referred to in his Savingram was not included in the Court Book documents. However, the Court also notes that because the Minister used the words, “...with the map of the Lease attached...” noting that he uses a capitol “L” to spell the word “Lease”.
   • [134] Therefore the Court finds that this map which the surveyor was directed to use, is the same map referred to in page 3 of the Deed of Lease 7888 (CB 58) registered 26 August 2010 showing boundary pegs numbered 81313, 81314, 100362, 100221 and 100281. These are the same boundary peg numbers referred to and used following the survey to create the official map.
   • [135] Mr Moala notes that Mr Ma’ilei attended the land and provided a survey report dated 24 August 2012 describing the obstruction of the building (Item 23218). This report can be found at CB 104 and the detailed survey map at CB 105.
   • [136] He described how on 23 June 2015, Mr Fakafanua then signed an application to lease from IML of the remaining part of his ‘api which was approved by Cabinet in CD 692/2015. That lease was registered as Lease 8807 on 2 March 2016.
   • [137] In para 17 of his brief of evidence Mr Moala stated that Mr Fakafanua’s consent to the lease application by IML “demonstrates that he ought to have known that any re-adjustment to Lease No. 7888 will affect the existing buildings on the land.”
   • [138] When asked by Learned Crown Counsel at hearing, “Teke lava fakama’ala’ala mai koeha ‘uhinga ‘oku ke talamai ai ia?” (Can you elaborate on why you say that?)
   • [139] Mr Moala replied: “Kapau ‘e fakafoki e tofi ki he me’a ‘e uesia e fale hange koeni koe na’e lipooti koeni koe ‘e Graham [Ma’ilei] ‘ene ‘uluaki ‘alu ‘o fua savea koe ‘a e konga ne uesia ‘ae fale ia. Pea tupunga ai ‘ene fai koeni ‘a e liliu ‘o e tofi. ‘a ia kapau ‘e toe foki peia ki he tofi koe na’e launga ai ‘a Kisi ‘e kei uesia fale sea ‘ene tu’u koia.” (If the lease returned to be subdivided in that way the house will still be affected and it is shown here on Graham[Ma’ilei]’s statement that when he went to the allotment to conduct the survey the house was already affected now that is why he had to go through with changing the subdivision of the allotment. So the truth is if the allotment went back to the first subdivision which Kisi[one] complained of the house will still be affected.)
   • [140] Mr Moala and Learned Crown Counsel extensively discussed the set of working sketch maps numbered CB 71-74, which show the distinctions between what Cabinet approved for the lot and what was actually needed on the land to avoid boundary encroachment because of the structures already on the land. This analysis underscored the lack of an updated map of the land since the map surveyed in 1995 when Mr Fakafanua was granted his ‘api kolo. Even a basic updated sketch map showing the boundaries and identifying precisely where buildings were located would have helped the Minister himself and Cabinet to understand the status of the land at the relevant time of application, 2009.
   • [141] Instead, Mr Fakafanua’s application and 1995 survey map (CB 52, 53) were relied upon by a number of people, including the Minister and Cabinet, who never actually visited the land to understand what was on it in 2009, some 14 years later. The inference to be taken is that they believed the land to be clear of any structures, when in fact it had been developed.
   • [142] The Court finds that this lack of accuracy at the time of the application to lease, 2009, was a fundamental error and needed remedial work to correct it and avoid prejudice to the plaintiff or any others who may become interested in the land. The plaintiff himself must bear responsibility for not having ensured that in his own application to lease, an accurate and up to date survey map showing the structures on his ‘api was provided.
   • [143] It would have made a very big difference if for example the plaintiff and his company had made a survey map showing the land and the location of the large building on it in 2009. Had such a map been prepared before applying to lease the land, it is almost certain that the consequent confusion and problems would have been avoided for all these years.

Plaintiff Counsel’s cross-examination of Mr Moala

[144] On the topic of whether or what information the Ministry conveyed to the plaintiff and when, plaintiff counsel, Ms Tavo-Mailangi asked Mr Moala referring to the 2012 re-survey, “..what did the survey office do with the issue reported by Graham Mailei do you know?”, to which he replied, “I do not know what work was done up to the year 2015 or any work made by Graham regarding the measurements.”
[145] The Court notes that on the scant evidence brought before it, the financial difficulties which the plaintiff and his companies encountered after 2009 up to 2011 appear to have led to considerable challenges for both he, his companies, his business associates and lenders. It is noted again that for some time after the period 2011 - 2012, perhaps due to ongoing litigation, appeals and related complications - correspondence and engagement between the Ministry and the plaintiff was in abeyance. Communication between the parties about the boundaries appears to have been derailed somewhat by the plaintiff also applying for a further lease of his adjoining land to IML in 2015.
[146] A further line of plaintiff counsel’s questioning was made about knowledge of the existence and location of the buildings. This rounded on which government department was responsible for checking construction and where buildings could be built and whether this was done for the subject land. Mr Moala advised that he did not know because it was not his Ministry (of Lands)’s job, that was another department. Learned Counsel Mr Edwards helpfully advised the Court that those responsibilities lay with the Ministry of Infrastructure.

Crown Counsel’s re-examination

[147] In re-examination Learned Crown Counsel asked, “You have stated that the last survey was in the year 1995 and it is shown in your records and if that was the case by now you wouldn’t know if there is a house built there. Because you only knew of the house when Graham went to the allotment?” To which Mr Moala answered, “Yes”.
[148] Counsel continued, “How would the ministry know of this?”
[149] To which he answered, “The parties should have informed us about the house, whether the house is involved in the things they seek consent about, but they should have informed our ministry about it.”
[150] Crown counsel asked, “With all the records with you, do you have any records saying that there is a house situated within the allotment?”
[151] The witness answered, “I have already checked all the records within the ministry and nothing is mentioned that there is a house until the day the survey took place.”
[152] The Court notes that this evidence underscores earlier comments that the absence of a map showing existing buildings should have been provided to the Minister upon application in 2009.
[153] When asked by Crown counsel whether or not the changes had any effect on the plaintiff’s town allotment, Mr Moala replied, “Sea ‘oku ‘ikai uesia ‘oku fakatou ma’u pe ongo ‘elia koe ‘a e ongo application ne fai ‘aki ‘e Kisione ‘ene maliuliu holo koeni ‘I loto. Kei tu’uma’u pe ‘a e ongo ‘elia. Kei ma’u loua pe ongo ‘elia na’e fai ki ai ‘a e application ‘I he me’a koeni.” (Sir, it has no effect, both the areas in the application were achieved in Kisione’s allotment despite the changes inside. Both the specified areas which were covered in the application are there.)
[154] The exchange continued with the question, “‘A ia pea te ke to e lava ‘o fakapapau’i mai ‘oku mole ha konga mei he ‘api?” (So can you confirm that no part of this allotment was lost after these works?)
[155] To which he answered: “Sea ‘oku ‘ikai ke mole ha konga ia he ‘api ‘o Kisione he liliu ‘a e boundary ‘a e ongo lisi kei ma’u pe ‘elia ‘a e ‘api kolo lesisita koia ‘o Kisione.” (No sir there has been no loss to any of Kisione’s town allotment by the changes to the boundaries of the leases. Both areas were achieved and are still retained in Kisione’s registered town allotment.)
[156] The Court finds as facts that Lease 7888 comprising 34 perches and Lease 8807 comprising 30 perches do in fact exist as properly registered leases which are referrable to for their terms.
[157] Mr Moala noted at para 18 of his brief that on “26 June 2015, Cabinet Decision 691/2015 approved to transfer Lease 7888 from FDL to IML. This transfer was registered on 7 December 2018 as Lease No. 7888A.”
[158] He also noted that on 8 March 2019, Cabinet Decision 294/2019 approved the transfer of Lease No. 7888A from IML to Fincomm B & R Development Tonga Limited, who are the first defendants to the plaintiff’s proceeding. That transfer was registered on 12 March 2019. The plaintiff issued these proceedings on 31 July 2019.
[159] Mr Moala concluded by saying that at present, “a building is currently constructed in the said land, and any re-adjustment to the marker pegs will end up with the constructed building being encroached.”
[160] The Court found Mr Moala’s evidence clear, unequivocal and he was able to provide answers and reasons for them, together with references to documentary information and correspondence which provided context and some clarity not provided by the plaintiff. It is noted that although he could not explain the period when the Minister and his officials did not communicate with the plaintiff about the changes made, he was able to provide his analysis as to why the problem arose by a lack of disclosure of the building in the first instance and what the consequences were for the Ministry in rectifying it. His evidence was credible.

100. Second Defendant Witness, Mr Ma’ilei
     • [161] Mr Graham Ma’ilei has worked as a surveyor for the Ministry of Lands since 1981. He is designated as ‘Senior Surveyor Officer’.
     • [162] His brief of evidence dated 12 October 2021 was filed with the Court and can be found at CB 48-49.
     • [163] When he attended Court to adduce evidence at hearing, Mr Ma’ilei also presented a survey map he had prepared of the subject land, dated 7 July 2010. The Court assigned it a Court Book exhibit page number “CB 49A”.
     • [164] Mr Ma’ilei showed us his survey map 49A. It clearly showed the whole allotment, with a shaded area showing the actual location of the building and a red line indicating the boundary originally instructed by the Minister, which he shifted. It shows the final location of the Lease 7888 and the boundary pegs which Mr Ma’ilei had installed to move the boundaries so as to preserve the building on the land from encroaching on the neighbouring lot.
     • [165] He stated at para 3 of his brief that, “In terms of work procedure in common practise when we conduct surveys we must ensure that there are no encroachments or obstructions on the land before we place the marker pegs. If there are impediments we will not conduct the survey in accordance with the application and Cabinet decision because it would cause an encroachment.”
     • [166] At para 5 he stated that, “When I arrived at the land in question, I noticed a building erected on the land.”
     • [167] At para 6, “I realised if I placed the marker pegs on the area shown on the lease application, it would cause an encroachment onto the existing building.”
     • [168] At para 7, “I then decided to move the boundary to avoid encroachment into the existing building.”
     • [169] He continued that, “On 22 June 2012 the Minister of Lands gave instructions to conduct a re-survey of Lease No. 7888 as requested by Counsel for Kisione L. Fakafanua.”
     • [170] The Minister’s instructions are at CB 60, CB 103. His specific wording reads, “Please have the survey comply with the map of the Lease attached to this letter and do not change anything. After completion of the survey then prepare the map for registration and take note to confirm that the map is examined according to the location stated in the instruction.”
     • [171] Mr Ma’ilei continued at para 9, “On 16 August 2012, I drafted a survey report which was completed on 24 August 2012. The report outlined the nature of the survey conducted, the total area and most importantly noted technical problems encountered. The technical problems in particular was the obstruction of the boundary lines on the lease application on the existing building.”
     • [172] During hearing Crown Counsel Mr Maka asked Mr Ma’ilei, “Did you report to the Minister when you found out and you had to readjust?” To which the witness replied, “Usually most of our cases we make the change on the site before we report but we should have reported.”
     • [173] To the next question on the topic of procedure in such situations, Mr Ma’ilei answered, “Is it the normal practice we make the change and later we report to the Minister?
     • [174] Answer, “Yes.”
     • [175] Continuing on this line of enquiry, Counsel asked him, “How many surveys have you carried out where you have to re-adjust the boundary place?”
     • [176] Answer, “Just close to a thousand.”
     • [177] Question, “And were there any issues with you re-adjusting those [boundary] marks?”
     • [178] Answer, “Not at all.”
     • [179] Mr Ma’ilei then referred the Court to the application sketch map at CB 53 and showed exactly where he had re-adjusted the boundaries to.
     • [180] On the important topic of how much the building would have encroached onto the adjoining land, Mr Maka asked, “Mr.Mailei if you did not adjust the marker place how much of the building in the joining land will be affected?”
     • [181] Answer, “100 square metres.”
     • [182] Question, “so 100 square metres of the building and not the land affected?”
     • [183] Answer, “Yes.”
     • [184] The Court notes again that 100 square metres of a building is a very large part indeed, particularly in a piece of land of 860 square metres. This is significant because until this evidence from the surveyor, the scale of the encroachment was not raised by the plaintiff, covered in any detail, nor did he acknowledge the difficulty of remedying such a large problem caused by the location of the structure on his land. This also explains why in those circumstances Mr Ma’ilei had to find a solution.
     • [185] Referring to his report of his re-survey of the lot, dated 24 August 2012 (CB 104-105), Mr Ma’ilei read out from page 104, entitled ‘Technical Problem Encountered’, his handwritten report, “Obstruction on boundary lines between corner marker causes positions of traverse space to be placed as on the sketch, however areas of the survey map still maintained despite several small differences in bearings comparisons + distances varies due to using of electronic equipment.”
     • [186] Counsel continued, “So even though you re-adjusted the maker place, na’e kei ma’u pe ‘elia? (it retained the same area?)”
     • [187] Answer, “The area required was still maintained.”
     • [188] Question, “Was there any other option available to you instead of adjusting the marker place?”
     • [189] Answer, “No.”

Plaintiff Counsel’s Cross-examination

[190] The Court notes that for reasons unknown the Court was not provided with a translation of the Court’s and Learned Counsel for the plaintiff’s cross-examination of Mr Mailangi and the Learned Solicitor-General’s questions. The Court has therefore made the following translations of the following relevant excerpts from the transcript.
[191] For the plaintiff, Mrs Tavo-Mailangi questioned Mr Ma’ilei on the issue of whether or not he or the Ministry communicated his report findings to Mr Fakafanua or others.
[192] Counsel asked, “Na’e fakahoko ‘a e me’a koia?” (Did you advise them [the applicants] of this?)
[193] Answer, “ ‘Ikai, namau sio pe ke fakakaukau lelei ke liliu pe kae toki inform pe.” (No, we saw and thought it was good to change it and then inform)
[194] Question, “ ‘A ia na’e fakakaukau’i pe na’e ‘ikai ke fakahoko ki he tokotaha ha’ana ‘a e kelekele na’e ‘ikai ke fakahoko ia ki he Minisita kae fakahoko pe ‘ekoe liliu?” (So you thought you would not provide it to the one whose land it was and did not provide it to the Minister, but you made the change?)
[195] Answer, “Koia. Ko e fakakaukau pe ‘oku mau fa’a fakahoko pehe pe ‘a e ngaue. (Yes. That is the way we usually carry out the work.)
[196] Question, “Pea fakahoko ‘a e liliu pea toki fakahoko leva ki he Minisita?” (So you made the changes and then gave it to the Minister?)
[197] Answer, “ ‘Io ‘osi e liliu pea fakahoko leva ‘a hono fa’u ‘a e lipooti pea ‘ave leva ki he Minisita.” (Yes after the changes I completed the report and gave it to the Minister.)
[198] Question, “Na’e ai ha tali ‘a e Minisita. ‘oku mahino kia au pau ke fai e fetalanoa’aki?” (Was there a reply from the Minister? I understand that there should be a discussion?)
[199] Answer, “Koia pea fetu’utaki leva ‘a e Minisita ki he owner pea ha’u ‘a Kisione ‘o launga. Ne tonu ke ‘uluaki tala ange kiai pea to e fakakaukau pe Minisita ke to e tu’utu’u ni pe.” (Yes the Minister contacted the owner and Kisione came and complained. It should have been advised [to him] first and then the Minister could have considered making further directions.)
[200] Later in her cross-examination: -
[201] Counsel’s Question, “Ka ‘oku ou fakatokanga’i pe Semisi ko e savea koia na’e fakahoko ‘I he 2012, na’a ke ‘osi lave anenai ki ho’o lipooti ka kou sio hifo ‘i lalo ko e tafa’aki ke fakahoko ai ha’o fokotu’u fakakaukau pea mo e komeni ‘a e tokotaha...” (I notice Semisi that with this survey that you did in 2012, you referred us today to your report and when I look down at the section where you can insert your thoughts or comments, but it had nothing written there?)
[202] Answer, “Koia.” (Yes)
[203] Question, “Ke pehe na’e tonu ke fakakakato pe ko e ngata’anga pe eni ia ho’o savea ‘o ngata pe he fo’i obstruction koeni palopalema fakatekinikale? (Do you mean that it should be completed or that your survey report is complete with the obstruction described as a technical problem?)
[204] Answer, “‘Io fe’unga peia ai ‘ikai ko ha fu’u lokome’a te ne uesia ke to e fai ha recommendation.” (Yes, it was enough and it was not so much affected to also have to make a recommendation.)
[205] Question, “Ke to e fakafoki koia ‘a e mape?” (To return the map?)
[206] Answer, “ ‘Osi fakafoki ia ‘ikai ke to e ai hano maumau.” (It had already been returned because there was no damage done.)

Crown Counsel’s Re-examination

[207] In re-examination, Mr Sisifa asked the witness about his return to re-survey the land in 2012. He asked, “Hanga mu’a ‘o fakapapau’i mai ko ho’o aluatu koia he 2012 na’e kei tu’u e fale ai pe ‘ikai?” (Can you confirm that when you went back in 2012 was the building still there or not?).
[208] Answer, “ ‘Io kei tu’u pe ‘a e fale.” (Yes the building was still there.)
[209] Question, “Ka ‘oku mahino mai na’a ke fakafoki leva ‘a e ngaahi fo’i maaka ki he fua totonu koia ne ‘oatu mei he Kapineti?” (And we understand that you returned the boundary markers to the same measurements given you by the Cabinet?)
[210] Answer, “Koia.” (Yes.)
[211] Question, “Sai ko ku mahino’i leva ‘ai koe fakafoki koia ‘oku ‘ikai ke toe uesia fale ia - ke lava fakama’ala’ala?” (Good so it is understood that upon that return the building was not encroaching – can you elaborate?)
[212] Answer, “ ‘Io na’e to e ngaahi he kautama, na’e to’o ‘a e konga na’e uesia ‘o lava leva ‘o to ‘a e maka.” (Yes they had fixed it, they removed the encroaching part and we were able to install the marker.)
[213] Question, “Ko e 2009 te ke lava ‘o fakamatala ki he konga ‘oku pehe na’e uesia?” (As at 2009 can you describe the parts which were encroaching?)
[214] Answer, “Ko e konga koia na’e ai mo e ngaahi sitepu mo e ngaahi sidewalk mo e me’a he fa’ahi koia ki ‘olunga pe ko e fale fungavaka.” (Those parts were the stairs and the sidewalks and parts above that, as it was a two-storey building.)
[215] Question, “Pea mou aluatu koia he 2012?” (And when you went back in 2012?)
[216] Answer, “ ‘Osi to’o ia ‘e nautolu.” (They had already removed it.)
[217] Question, “ ‘A ia ‘oku kei tu’u pe ‘a e fale ka ko e konga na’e uesia he 2009 ‘osi to’o ia?” (So, the building was still standing there but the parts of it which encroached in 2009, had already been removed?)
[218] Answer, “Koia.” (Yes.)
[219] Learned Counsel moved his re-examination to questions concerning the procedures for situations like this. He asked, “‘E malava kapau te mou aluatu koia ke fai ‘a e savea pea mahino mai ‘oku ai ha fale pe ‘oku ai ha me’a he ‘api ‘e uesia, ko e ‘uluaki me’a na’a ke talamai temou foki ‘o lipooti ki he Minisita mo e founga ngaue ‘e taha ko ho’omou fakahoko pe ‘emoutolu ia hono re-adjust ‘i he feitu’u koia kae fakahoko ‘aki pe ‘a homou fakakaukau lelei taha?” (Could you go and do a survey and if you found a building there which affected the land, the first thing you told us is that you could return and report to the Minister and the other procedure is that you could yourself do your re-adjustment at that place and rely on it as your good judgment?)
[220] Answer, “Koia, Fakapotopoto ia.” (Yes that is wise.)

Court’s Questions of Clarification

[221] By way of seeking clarification of procedures and how often he had encountered such situations, the Court asked the witness,
[222] “Mr. Ma’ilei na’e ai ‘a e fehu’i mei he fakafofonga fekau’aki mo e me’a koeni ‘oku hoko. Ko’ete ‘alu ki he ‘api ke savea’i pea ta koee ke ‘i ai ha ‘ata ai, ka ko e fale ia ‘oku tu’u ai. Pea mahalo na’e fehu’i atu pe ko e tu’o fiha ia ‘a e me’a ni na’e hoko ‘i ho’o ngaue he ko e ta’u ‘eni ‘e 40, tu’o fiha ‘eni e hoko ha me’a pehe ki ho’o manatu ko e laungeau pe ko e ha’? (Mr Ma’ilei, there have been questions from counsel about what has happened. You go to a section to survey it but on what is supposed to be a clear space, there is a house standing on it. You may have been asked how many times has this happened in your work over these 40 years, how many times to your recollection, hundreds or?)
[223] Answer, “Nau pehe pe ko e tahaafe ‘o fai ki he uaafe kae manatu’i ko e ngaue peheni ‘oku ‘ikai ke ‘aho kotoa pe, ‘oku ai ‘a e uu ngaue kehe ia. ‘A ia ko e lau ngeau pe ofiofi pe ki he afe.” (I thought maybe a thousand or up to two thousand, but remember that this type of work does not occur every day, as there are different types of work. There have been hundreds, maybe close to a thousand.)
[224] Court Question, “Pea ko e fakamatala koia na’a ke fai ‘oku ai pe ho’o procedure ki ai ke liliu leva ‘a e boundaries ke a’u ‘a e falahi fakatatau kae ue’i leva ‘a e boundaries ke fakalelei?” (You also told us that you carried out this procedure changing boundaries to achieve the same area sizes, but changing the boundaries to put it right?)
[225] Answer, “Ki hono formation. Koia.” (To its formation. Yes.)
[226] Court, “Ka na’e to e ai ha launga makehe ia mei he fo’i case koeni ki mu’a atu?” (So was there ever another complaint before, other than this case?)
[227] Answer, “ ‘Ikai ko e fuofua launga pe ‘eni pea ‘oku ou mei penisoni. Ko e fo’i taha pe.” (No this is the first ever complaint and I am near to retiring. There is only one.)
[228] Court, “Na’e to e ai ha option makehe ‘i he fo’i situation koeni, na’e ai ha faingamalie ke ke to e ue’i ki ha feitu’u kehe? (Was there any other option in this situation, was there a choice to shift it to another location?)
[229] Answer, “ ‘Ikai, ko e faingamalie pe ko e holoki e fale. Ka ko e lahi taha ‘a uu me’a pehe tenau talamai pe ke hiki ‘a e fale ‘anautolu. (No, the only other choice was to demolish the building. In the majority of other cases like this, they will tell me they will shift the house.)
[230] Court, “Kae hangehange ‘oku ‘ikai ko e option ia? (So it appears this was not an option here?)
[231] Answer, “ ‘Ikai. ‘uhinga he ko e fale lahi ‘aupito ia.” (No. Because it was a very big building.)

First Defendant Counsel’s Re-examination

[232] Learned Counsel, Mr Edwards asked, “How many times do you recall or is it normal for someone to ask you to survey after they’ve already constructed on the land?”
[233] Witness answered, “As I told Your Honour it’s a hundred or close to thousands, most of the cases.”
[234] Overall, the Court finds that Mr Ma’ilei explained the actual processes, details and decisions he made to resolve problems he encountered. Once he had conducted the surveys, he was comfortable with having exercised his discretion to make adjustments necessary to prevent encroachment of a very large level. His decades of experience in dealing with such matters was obvious. The Court found his evidence was clear and credible.

V. THE PARTIES’ LEGAL SUBMISSIONS

1. Plaintiff’s legal submissions
   
   • [235] Learned Counsel for the plaintiff, Mrs Tavo-Mailangi commenced closing submissions by saying that “the plaintiff brings these proceedings against the defendants, but mainly the second defender, based on incorrect boundary marker pegs on Lease 7888 of which he is the lessor and which is not in compliance with the official boundary marker pegs approved by Cabinet in CD 371 of 12 May 2009.”
   • [236] Referring to her client’s amended statement of claim she stated that he sought the following orders:

“Specific performance against the second defendant to correct their boundary marker pegs of lease 7888; and

for the matter to be referred back to the Minister of Lands for the issuance of the lease with the corrected boundary marker pegs; and

Costs.”

[237] At para 3 of her closings, Counsel sought leave to: “... delete the first prayer of relief...

“Specific performance against the second defendant to correct their boundary marker pegs of lease 7888”

“... based on the unchallenged evidence of the 2nd witness of the Second Defendant witness [Mr Ma’ilei] that confirmed he had corrected the boundary pegs for Lease 7888 in 2012.”

[238] Counsel confirmed that the plaintiff still sought the orders that the Minister of Lands reissue a lease with correct boundary marker pegs.
[239] At paras, 4 and 5 of her closing, Counsel backgrounds the plaintiff’s 2009 application to lease and at para 6 she submits to the Court:

“The lease application was accompanied by a map clearly indicating that the part consented to by the plaintiff to be leased specified an area of 34p (860 m2) and contained boundary marker pegs given as 81312, 81313, 81314, - shape being rectangular.”
Analysis: Map old and incomplete, 3 boundary pegs, not 5,
No disclosure of building on land, proper survey required

[240] The Court here notes some very important underlying facts which have not been raised by Counsel which impact upon the plaintiff’s claim.
[241] First, from the evidence before it the Court has found that the plaintiff’s 2009 lease application was accompanied by a survey map from a 1995 survey from which he was granted his ‘api kolo. It is at CB 53.
[242] At some time after the creation of that 1995 map, the plaintiff himself or his business partners constructed a large two-storey building on his ‘api. The plaintiff himself seems to recall construction in circa 2006.
[243] Yet, for reasons he has not told the Court of, when the plaintiff applied to the second defendant in 2009 to lease one lot of his land to his company FDL, he failed to provide the government with an up to date survey map or even a sketch map clearly disclosing the location of the building on the land he wished to subdivide and lease.
[244] This is fundamental to determining what rights he has.
[245] Under the Land Act, the second defendant is the Minister responsible for administering all the land in the Kingdom is reasonably entitled to receive all of the relevant information from any person seeking his assistance with surveying and registering a parcel of land. Without full information provided it is not reasonable to expect the Minister to be able to do his job properly.
[246] A landholder applying to the Minister must come fully prepared with all the information which is relevant to their application.
[247] Nowhere in the plaintiff’s application, nor in his evidence before the Court, nor in his lawyer’s correspondence to the Minister during 2011-2012 is the building mentioned.
[248] The Court finds that a large building on the land is relevant to the lease application and the plaintiff should have disclosed it to the second defendant, complete with a professionally prepared, up-to-date map or at least a sketch map showing the structure with even an approximate location.
[249] The facts before the Court show that he failed to do so and this had a flow-down effect on the next events.

3 boundary marker pegs on relevant land & 2 measurements

[250] The Court has found as a fact that the plaintiff’s lease application sketch map (pleaded at para 7 of the amended statement of claim) only has three boundary marker pegs, not five. Those pegs are numbered “81312, 81313, 81314.”
[251] The remaining two numbers relied on by the plaintiff his case from the old 1995 survey map are not boundary pegs. A proper inspection of the map shows that “41.652, 50.804” are in fact boundary length measurements.
[252] The map has a hand-drawn dotted line bisecting the land. The fact that the boundary length measurements cannot be and in fact are not boundary marker pegs.
[253] The Court finds that the maps hand-drawn dotted line of demarcation is at best indicatory only of the land sought to be properly defined and leased. Precise locations of resultant final boundary marker pegs could only be done by a fully qualified experienced professional surveyor.
[254] This was the role of Mr Ma’ilei, the second defendant’s surveyor.
[255] The plaintiff mistakenly places very high significance on what the Court now finds to have been an old and incomplete 1995 map, not designed for the subdivision applied for. The Court reasonably draws the logical inference that it was drawn by someone who had not in fact been on the land to properly measure it and also provide the location of the large building on the land to be divided. Alternatively it is feasible that the map was drawn by a person who had visited the land but who had not measured it nor noted the building on it. Many centuries of useful survey science do not appear to have been followed in producing this map.
[256] The plaintiff adduced no evidence about its origins yet he seeks to rely on its accuracy.
[257] The plaintiff’s case is marred by the lack of clarity about the relevant information he should have provided the second defendant and the procedures involved.
[258] Upon Cabinet approval, he properly issued instructions to his surveyors to survey the land and prepare a map for the Deed of Lease to be registered with. This is the correct procedure and may have worked smoothly as intended, had the application provided complete information.
[259] Clear evidence from Mr Ma’ilei established that in 2009 there was a 100 square metre encroachment by the existing building on the land and he believed the solution was to adjust the shape and location of the boundaries to retain the same size of 34 perches. The resultant change to the shape ensured retaining 30 perches for the neighbouring lot also.
[260] The plaintiff now seeks to challenge the second defendant’s and his officials’ conduct in adjusting indicative boundaries of the approved map when they were in fact incomplete, inaccurate in failing to disclose the building and in any event, all land dealings are subject to measurement and survey before registration as a matter of good practice. Like any good carpenter will say, ‘Measure wood twice, cut just once’. One must be even more certain of measurements in land.
[261] The Court finds that the plaintiff has made unreasonable and unfair criticism of the Minister, given his own failure to disclose full information at the outset. Full disclosure earlier would have avoided problems later.
[262] Key to this case is that understanding the nature of one’s own interests in their own land is a ‘bedrock’ of land law, which is why we engage surveyors expert in their profession to provide accurate surveys of the land and assess any improvements or accoutrements on it or affecting it. Accurate surveys provide certainty. The converse is also obvious.
[263] In his evidence to the Court, the plaintiff did not say in 2009 that he knew the building there was within the 34 perches in the Western parcel of land demarcated by dotted line on the 1995 survey map (CB 53). Rather, he has focussed on the second defendant and his officials not carrying out the boundary correction which he had asserted was necessary. He raised this complaint in 2012, well after the event of the issue of the lease to his company, FDL with the survey completed and Lease registered in 2010 (CB56-58).
[264] In the circumstances and on the evidence before it, the Court finds that the plaintiff’s mistake and lack of full disclosure was material in creating the problems he later complained of and blamed the Ministry for.

Plaintiff’s submissions continued

[265] In para 7 of her closing, counsel compared the boundary marker pegs recorded in the registered (in August 2010) Deed of Lease 7888 as “100381, 81313, 81314, 100362, 100221.”
[266] The plaintiff had pleaded that those three new boundary pegs, ‘100381, 100362, 100221’ are incorrectly located and needed to be corrected.
[267] The Court finds that those three pegs were measured, surveyed, located and installed by Mr Ma’ilei in his 2009 ‘adjusted’ survey. They appear confirmed as entered on the Deed of Lease by another surveyor, “Vivili or V Nili” on 20 July 2010 as appears on the registered survey map. This can be seen on the Deed of Lease at CB 58.
[268] Counsel then discusses the plaintiff’s 2012 complaint about the alleged boundary errors and the second defendant’s failure to correct them. She mentions at para 11 that Mr Ma’ilei’s August 2012 survey of the boundary markers of Lease 7888 “... effectively confirmed the Plaintiff’s concern.”
[269] She continues at para 12 that the failure to act as the plaintiff requested means that the boundaries as recorded “... remains incorrect to date affecting the interest of the Plaintiff.”
[270] Mr Niu’s 18 April 2012 letter with the plaintiff’s request to the Minister makes no mention of the fact of the existence of the building on the land or of the issue of encroachment onto the neighbouring lot. (CB 95,96)
[271] Neither does Mr Uele’s 9 May 2012 internal memorandum to the Minister make any mention of the building on the land, which had Mr Uele knowledge of, it would be reasonable to expect him to investigate and raise with the Minister. (CB 99, 100)
[272] The Minister, had he been informed of the building complicating the situation would likely have mentioned it.
[273] Notably, Mr Vea’s 18 June 2012 reply letter to Mr Niu’s April complaint does mention the Roadhouse building on the land. He also mentions Ms Stephenson’s 30 May 2012 precautionary letter about it and he told Mr Niu that the surveyor [Mr Ma’ilei] who undertook the work advised him [Mr Vea] that the area will “definitely affect part of the Roadhouse building.” (CB 59). It is not in evidence whether Mr Vea informed the Minister himself about the building, but from the evidence before the Court of the Ministry’s correspondence in 2012, it was only Mr Vea who raised it with the plaintiff’s lawyer, while others did not appear to.
[274] After that date, the Court has no evidence before it of any responses from Mr Niu or from the plaintiff himself about the matter. The Court finds that the plaintiff was notified by Mr Vea’s letter to Mr Niu, his then counsel.
[275] Even with the above narrative, it appears that by 22 June 2012 when the Minister issued his Savingram to re-do the survey, it is possible that he had not been made aware by either Mr Niu, the plaintiff himself, Mr Uele, or Mr Vea that there was a building encroaching across the dotted line boundary in the application map. The documentary trail appears unclear.
[276] It is therefore possible that in June 2012 the Minister still might not have been made aware of the building.
[277] Alternatively, although there was no evidence adduced on this point, it is possible to infer by his instructions that the Minister specifically instructed the registered Lease 7888 map be used because by June he had actually been informed of the building and that the boundaries on it were correct and therefore provided the very solution he sought; a re-survey confirming the boundaries his officials had already surveyed and used in Lease 7888.
[278] The Court has found that the second defendant’s 22 June 2012 Savingram instructions to officials to “re-do the survey” of the lot was to be based on the map of the Lease 7888 attached to it and he directed them “not to change anything” (CB 103).
[279] Either way, the Court’s finding that in his Savingram he instructed his officials to use the Lease 7888 map renders further speculation unnecessary.
[280] Whether or not the Minister had knowledge of the building straddling the plaintiff’s lot boundaries, the problem the plaintiff now complains of is still a direct result of his own failure to disclose a proper map of his land and buildings in 2009.

Natural Justice

[281] From paras 29 to 34 Counsel makes submissions on the second defendant’s procedures, which she says from the time of the official survey in 2009, breach his natural justice rights to be informed of the status of his application and what was happening to his land.
[282] At para 31 Counsel makes submissions which do not align with the Court’s recollection of Mr Ma’ilei’s evidence at hearing. In this regard it appears that she has confused the chronology within her cross-examination of the witness and therefore has confused the time frames of what was and was not reported to the Minister and when. This is because it was in April 2012 when Mr Niu made the formal complaint which gave rise to the Minister ordering the re-survey, which happened in August 2012. Mr Ma’ilei then reported to the Minister in late August.
[283] In any event, the extra efforts which the second defendant and staff were put to and which were heavily examined at hearing, all arose from the plaintiff not having disclosed at the first instance, that the building was on his land and providing an accurately surveyed map of where it stood. This undermines the plaintiff’s attempts to rely on the same principles of natural justice protecting his asserted rights to be consulted. If one substitutes the asserted right to be consulted with an earlier right to be informed at first instance, the double-standard can be seen. One must come to Court with ‘clean hands’ (no fault) if they are to ask for the Court’s indulgence.

Plaintiff’s knowledge of his lands

[284] In respect of Counsel’s para 43, the Court finds that there was no compelling evidence from the plaintiff to prove that in 2015 when he was applying for the second lease of the adjoining lot, his Counsel submitted:

“... he was told by an officer of the office of the second defendant that it was alright to proceed with the lease application in 2015, because work was still in progress on his complaint.”

[285] The plaintiff provided no names, descriptions of such persons nor details and the second defendant evidence denied that it happened.
[286] The Court also finds that despite his testimony that he did not know of the details of the changed boundary, in 2015 the plaintiff did in fact sign his consent to lease the significantly changed to ‘L’ shape neighbouring lot of 30 perches to International Metropole Development Limited.
[287] At paras 46, 47 in a difficult, complicated submission, Counsel mistakenly relies on the second defendant’s surveyor relying in his 2012 re-survey on the plaintiff’s 2009 proposed map discussed, but the Court has found it more likely than not, that the Minister had instructed his officials to rely on the Deed of Lease 7888 when they visited the land to survey. Mr Moala was referring to the original positions of the boundary pegs which he had installed upon his ‘original’ survey there in 2009 as confirmed by the 2010 survey map. Patently he was not referring to the location which the plaintiff’s 1995 map sought to have the boundaries, because he would have had to demolish the two-storey building to install them.

Plaintiff’s issues for determination

[288] At para 48 counsel submits that the issues are:

“a. Whether the second defendant had failed to ensure the compliance with his directives made on 22 June 2012 in respect of the registration of the correct map in respect of lease no. 7888

b. If so, whether the court has jurisdiction to refer the matter back to the second defendant for the issuance of the lease with the correct boundary marker pegs.”

[289] In respect of the plaintiff’s first issue (a) for the reasons given, the Court finds that the second defendant did not so fail.
[290] In respect of (b) the Court does have jurisdiction, where errors or mistakes are proven, to refer matters to the Minister for correction, but for the above reasons and further considerations of the plaintiff’s and defendants’ cases and orders to follow, it is not necessary.

2. First Defendant’s closing submissions
   
   • [291] Learned Counsel Mr Edwards filed the first defendant’s closing submissions on 19 January 2022, just days after the eruption of Hunga mo’unga’afi mo e peaukula. The Court notes advice received that following an injury, Counsel had been evacuated to New Zealand for emergency treatment, yet still managed to complete his client’s submissions and file them. The Court hopes that his recovery has been full.
   • [292] The Court found that Mr Edwards’ submissions provided clear, understandable and helpful analysis.
   • [293] At 1.4 he submits that:

“The First Defendant opposes the claim and the relief sought, upon the grounds that what the First Defendant received is exactly what the lease application stated in the form submitted to the Second Defendant, there being no communication of mistaken boundaries to the First Defendant when the application for the lease was made.”

[294] At para 3 Learned Counsel analyses the plaintiff’s closing submissions and overall focus on the claim on the alleged error by the second defendant. He correctly points out that the plaintiff had not pleaded any cause of action based on a breach of natural justice. Therefore he opposes any submissions made in reliance on the principles of natural justice and any alleged breach who is there is no cause of action pleaded.
[295] Mr. Edwards properly asks the question:

“.. is there a cause of action properly pleaded which establish is a legal right justifying intervention by the Land Court of Tonga?”

[296] He submits the fundamental question in the case is whether or not there is a properly pleaded cause of action which gives rise to an error requiring correction by the Court?
[297] Mr Edwards submits that there is no breach of a duty by the Ministry of Lands, nor is there a breach that justifies an order from the Land Court.

Application form and process; surveys must be undertaken

[298] Learned Counsel makes the point that in the Ministry’s standard application forms such as the plaintiff’s one dated 16 March 2009, there is no reference to maps or boundary pegs (CB 53). They are not required. He adds that the plaintiff himself does not set the boundary pegs in his application; he applied for a lease of part of his land to his company. The only use in the form to the word ‘survey’ is where payment of the survey was recorded as having being made on 27 April 2009.
[299] The court notes that the payment above is recording that the plaintiff has to pay the Ministry to survey the land. Further, ‘Form L 9’ which the Ministry of Lands uses and is in fact the form used by the plaintiff to lease the land to his company, FDL (CB 52), is taken directly from Schedule IX of the Land Act, arising from s 124 of the Act, “Form of Leases”.
[300] The Court also notes that under s 19 of the Act, “General Powers”, it is the Minister himself who is the representative of the Crown in all matters concerning land in the Kingdom (s 19(1)), which includes the responsibility to “endeavour to define the boundaries of every landholder” (s 24). He is responsible for his officials who survey all land dealings and it is he who is charged with maintaining the Land Register as the Registrar-General (s 19 (5)). It is the Minister who shall authorise all surveys (s 19(6)) and in that process boundary pegs. Private landholders may rely on boundary pegs, but do not define where they are to be located. Government surveyors have that duty.
[301] His Majesty the King in Council may issue regulations on such matters as may require (s 22).

A matter of ‘consent’ or an application to lease, subject to survey?

[302] Mr Edwards submits at para 4.7 that the plaintiff's 2009 application does not set in fact out the boundary pegs for the land he wanted to lease. He quotes this in contrast to para 7 of the amended statement of claim that he:

“... consented to the specified area as 34p (860 m2) and the boundary marker pegs given as 81312, 81313, 81314, 41.652 and 50.804.” [emphasis in original]

[303] The Court has already made findings that upon a proper review of the 1995 map relied on by the plaintiff in his 2009 application, the last two numbers listed above “41.652 and 50.804” and pleaded as boundary pegs in fact being measurements in metres of the length of the Northern and Southern boundaries of the ‘api kolo on the 1995 map. It appears that this has also escaped the scrutiny of Learned Counsel, but that demonstrates the inherent power of a person making a formal claim pleading to the Court; a plaintiff represented by counsel is expected to have the backing of sound, factual evidence in its allegations, not errors in conception of such important details as what a number represents on a survey map. It also shows how such a basic mistake can influence beliefs and actions of others and as it has in this case, waste a lot of time and everyone’s money.
[304] What followed is that the plaintiff relied upon that defective map as if it was definitive of his interests even before an official survey had been done by Ministry experts. In this he was himself in error. Yet it was this belief held by the plaintiff which he said he ‘consented’ to in his pleadings that gave rise to section 4 of Learned Defence Counsel’s closing.
[305] Returning to Mr. Edwards’ submissions, at paras 4.6 to 4.8 he says that the plaintiff does not so much make an application with himself defining the plot by setting the boundary pegs, rather he consents to the survey plan which he alleged that the Ministry later changed in paragraphs 7, 8 and 9 of the amended statement of claim.
[306] Reviewing the evidence chronology, he records that the plaintiff’s application was dated 16 March 2009, the survey fee was paid on 27 April 2009 and a survey was then carried out by Mr Ma’ilei on 15 May 2009.
[307] Mr. Edwards submits that the plaintiff could not have given his ‘consent’ when he made the application to lease the land because no survey had yet been done and no defining boundary pegs were known to the plaintiff at that time as a result.
[308] The Court agrees with counsel’s assertion in respect of the plaintiff having alleged in para 7 of his pleadings that he gave his ‘consent’, in the sense that where it appears here that the plaintiff more could be more correctly said to be simply ‘applying’ to the Minister to process his application.
[309] The Court also notes a detail here that in due course, following survey, two of the boundary pegs on the 1995 map did survive into the Lease 7888 survey map, specifically those pegs marking the Western corner, “81313” and the North-Western corner peg “81314”. Otherwise those pegs and those measurements on the old 1995 map meant nothing and could not give the plaintiff more rights than he had at that stage of his application until and unless a full survey was completed.
[310] Counsel argues at para 4.10 that the plaintiff gave no ‘consent’ to any boundary pegs or change of them, because the only document that was submitted prior to the issue of Deed of Lease 7888 was the application form. He notes that the evidence established:

The 2009 application form (CB 52);

The Cabinet decision of 12 May 2009 (which approves the 50 year lease of a 34 perches lot) makes no reference to the boundary pegs nor the survey of the land (CB 54);

The Ministry of Lands 15 May 2009 notice to FDL and the plaintiff that Cabinet approved the lease application and where the Ministry advised “The Ministry will execute all survey requirements for the said lease before registration.”; and

The Deed of Lease 7888 (CB 56-59)

[311] Learned Counsel submits with some justification, at 4.11:

“It is a glaring deficiency of the writ and statement of claim that remains unexplained, the consent of the boundary markers, where the survey had not been carried out at the time of the application.”

[312] At 4.12 and 4.13 he comments on the plaintiff’s evidence about what he believes he applied for and what he says he received in due course. He concludes the section by submitting that the plaintiff’s own conception of ‘consent’ arises from his having made an application in circumstances where there had been no survey made. He argues that the plaintiff’s allegation that he had consented to the boundary marker pegs when no survey had been undertaken means that his amended statement of claim is wrong and is not supported by the evidence before the Court.
[313] In this regard and for the other reasons given, the Court agrees.

FDL, First Defendant and International Metropole Limited

[314] In section 5, Counsel notes there is no formal complaint made by Faua Development Limited (FDL) in these proceedings about the survey and boundary pegs set by the Ministry.
[315] He notes that Lease 7888 was transferred eventually to the first defendant, which company has not complained about the boundary pegs.
[316] He notes a problem for the plaintiff, when in 2015 International Metropole Limited (“IML”) made an application to lease the plaintiff’s adjacent land, the lease granted to IML had taken up the boundary pegs on the Eastern and southern sides of the first defendant’s lease (CB 62,63).
[317] In this respect, Counsel records that both IML and the first defendant consented to the boundary pegs, do not support the plaintiff’s efforts to amend the boundary, and are in legal position an occupation of the registered Lease 7888A and Lease 8807.
[318] Mr. Edwards asks the reasonable question on behalf of his clients, what loss did the plaintiff suffer? How is he aggrieved when he is not affected by the boundaries?
[319] His answer to his own questions is the submission that the plaintiff:

Did not suffer any loss arising from the placement of boundary pegs;

Incurred no financial loss arising from the boundary location of his two leases; and

Did not explain how he had suffered loss of investments as pleaded in paragraph 14 of his amended statement of claim.

[320] He submits that if the boundary markers are moved in the manner sought, the first defendant would suffer an injustice because it's building will encroach upon the land of its neighbour, IML.
[321] The Court notes that IML, although not a party, may be prejudiced by the grant of the orders sought by the plaintiff.
[322] Mr Edwards submits that the second defendant admitted in evidence that his client would be affected by the orders sought.

Evidence

[323] Counsel reiterated that the first defendant did not give evidence, nor was there any plaintiff’s pleading of wrongdoing against them. There was no evidence that the first defendant had knowledge of any mistake or error when it acquired the remainder of the lease.
[324] The first defendant says that because of their leases, it is the first defendant and IML are affected by the boundaries, not the plaintiff.
[325] He submits that the plaintiff admitted that the boundaries had not caused him any loss.
[326] He notes the Crown’s evidence of how the survey was conducted, that there was a building on the land which had to be configured when making the map.
[327] There was no evidence that the first defendant knew about the plaintiff’s complaints and the first defendant is a bona fide purchaser for value without notice.
[328] Counsel submits that the evidence does not support the plaintiff's claim.

Legal Position; ss 23-29 of the Land Act

[329] Counsel provides analysis of the Act’s relevant provisions under “Division II Definition of Areas and Boundaries” and submits that ss 23-29 should be read together as opposed to independently as he says the plaintiff suggests in closing.
[330] He argues that s 24 should not apply in this matter because the right of a minister to order a survey arises only if there is a dispute of the area or boundaries of a landholder’s holdings.
[331] Mr. Edwards argues at 7.10 that on his reading, because s 29 only mentions that following a decision on the boundaries for any allotment, then a Deed of Grant will be issued in accordance with a form from Schedule V (Whereas the Court notes that Deeds of Lease forms are to be found in Schedule IX). He contends that because there is no reference to a Deed of Lease in this part of the act, it suggests the reading together ss 23 to 29 is appropriate, and this means that those sections are provisions applicable to an allotment or hereditary estate, not a lease.
[332] At para 7.11 he submits that if a dispute over an area or boundaries under a Deed of Lease do apply, then the plaintiff has no standing because the person to bring a dispute about the boundaries or area of holding implicitly is the ‘holder’ which for all intent and purposes is the first defendant, not the plaintiff.
[333] In terms of Counsel’s submission, the Court notes that as the ‘api kolo holder, the plaintiff has in effect leased out the interests in both lots to the first defendant and to IML for the remainder term of those two leases. In respect of locus standi, Mr Edwards’ approach is that the plaintiff is, if anything, the holder of the right to resume full title to either lease at its termination, but not before. Presumably he also means that this is especially so if it can be shown that there is no prejudice to him.
[334] In this case the first defendant submits through counsel that they have no complaint with the current status of the lease boundaries. Counsel advised the court that likewise, IML have no issue with lease boundaries. Certainly in this case the plaintiff has not taken issue with IML, yet he has included the first defendant in his writ. The plaintiff has not included IML as a party to this action, although they appear to have interests.
[335] This line of debate could possibly have been pursued by Learned Counsel in an interlocutory application to strike out his client being a defendant at all in these proceedings, but the Court notes his client responsibly attending on the case as a defendant to protect its interests. At this late stage the matter is moot.
[336] As are the submissions about whether or not any of the provisions in ss 23 to 29 can be read individually or must be read in conjunction because of the peculiar wording of s 29 pointed out by Mr Edwards.
[337] It can be observed that s 29 would suggest the point he makes. However, given the important and very broadly ranging provisions in ss 23-28 referring to “every landholder” (s 23), “any landholder” (ss 23, 24 and 27), “any area or boundary” (s 25), it appears possible that the wording of s 29 is somehow a legislative drafting oversight; in that the drafters may simply have overlooked and left out a s 29 subsection referring to issuance of Deeds of Lease and a reference to forms in Schedule IX where appropriate. Alternatively it may of course be purposeful legislative drafting.
[338] In the present case due to the nature of the findings and orders which will be made, the Court does not find it necessary to make a specific finding on those matters in relation to ss 23-29.

Invitation to Crown Counsel to investigate and report: ss 23-29

[339] Having so observed, the Court does however note that Learned Crown Counsel may wish to investigate further this apparent drafting inconsistency and/or omission and report to the Attorney-General, the Lord Chief Justice, His Majesty’s Privy Council via the Judicial Committee thereof and the Parliamentary Legislative Committee on their findings, possible permutations and any recommendations which they may see fit for consideration of an amendment to the Act, if appropriate. This comment is made in the interests of understanding and avoiding future problems which may arise in these types of cases and possibly ones of a more complex nature, where landholders’ rights may be at issue.

Deed of Lease terms, registration

[340] Counsel for the First defendant then refers the Court to the standard Form No 3 Lease from the Schedule IX of the Act, reproducing some passages at para 7.13, and followed that with the comments that under those terms, the lessee is lawfully able to remove all houses and improvements built on the land.
[341] How he this relates to our case is that arising from Mr Ma’ilei’s evidence, which he quotes from, allowing encroachment of the building on the land onto the neighbouring land would create prejudice to his client.
[342] Mr Edwards’ submission is that building belonging to FDL would have come to be on the plaintiff’s land and not on the lease for FDL.
[343] He adds that it is most unusual for a lessee to build on the land first, before the land is surveyed and the Deed of Lease is issued.
[344] He attributes the blame to the plaintiff and asks the question how FDL as lessee could remove it’s building part or a part of it, when part of it’s building would have been on the plaintiff’s land, had he managed to move the boundary?
[345] Counsel then submitted that the Court’s finding in Koloamatangi v Koloamatangi [2003] TLR 23 in respect of registrations is applicable:

“Registration is final unless it has come about as a result of an error of law (ie contrary to the Act), or as a result of fraud, mistake, breach of principles of natural justice or of a promise made by the Minister.”

[346] Mr Edwards then provided some analysis of the Koloamatangi judgment and submitted that the nuance relevant to his client’s position is that there was a false statement by an applicant that in fact misled the Minister in his duties. That the Minister was misled had a flow-down effect to the second defendant in that case who was a bona fide purchaser for value without notice of the fraud which led to that error in registration. Accordingly in declining that plaintiff’s request for orders to cancel that defendant’s registration, the Court held:

“I am not prepared to recognise any such principle in the present case where the second defendant and has enjoyed possession for a significant period of time and has incurred very significant outlays.”

[347] The Court found that the plaintiff had failed to establish any claim against the second defendant, who was an entirely innocent party to the first defendant’s fraud.
[348] In the present case Counsel argues that the first defendant is in a similar situation to that of the second defendant in Koloamatangi and further the plaintiff has not pleaded any allegations of wrongdoing against the first defendant. Notwithstanding that he points out the irony is that the orders which the plaintiff here seeks are likely to adversely affect the first defendant as bona fide purchaser but “not so much the Ministry of Lands.”
[349] Mr. Edwards therefore submits that his client acquired the lease without any notice of any defects to the title, has constructed a building on that land at considerable cost, and if the orders sought by the plaintiff are granted, this will place part of the building on the neighbouring lease held by a third party. This will cause significant prejudice to his client.
[350] He submits that the plaintiff has failed to establish any personal loss and that even if there was to be a finding of an error by the surveyor, the plaintiff’s orders should not be granted because of the prejudice it would have on the first defendant.
[351] Mr. Edwards concludes his submission saying that plaintiff’s claim should be dismissed with costs awarded against him because:

• ➢ His client is not at fault in any way;
• ➢ The reasoning in the Koloamatangi decision can be applied in favour of the first defendant to protect his interests;
• ➢ There is no wrongdoing pleaded against the first defendant, nor any proof;
• ➢ the first defendant is a bona fide purchaser for value without notice who is likely to suffer harm if the orders sought are granted, whereas the plaintiff himself has not suffered any loss from the allegedly incorrect boundaries;
• ➢ The Crown's witnesses clearly explained why and how the survey was carried out. Nothing in the evidence would support the notion that the surveyor acted wrongly in locating the boundary pegs as appear in the Deed of Lease 7888.
• ➢ The plaintiff’s allegations do not justify intervention by the court in altering or ‘correcting’ the boundaries of the present leases where, it would affect the rights of the first defendant and International Metropole Corporation.
  

100. Second Defendant’s closing submissions
     
     • [352] Learned Counsel for the second defendant, the Minister of Lands submits his position that:
       • ➢ In 2009 the plaintiff was well aware and it can be seen from the circumstances of his case, their building was already erected in his land and the location of the building had encroached the boundaries and that the surveyor cannot install marker pegs inside an existing building. Therefore the most sensible approach was the one that the surveyor took, readjusting the proposed boundaries and marker pegs in order to save the building before Lease 7888 was registered;
       • ➢ In 2015, the plaintiff had consented to the shifting of the marker pegs of the boundary of Lease 7888 when he subsequently entered into a new Lease 8807 with International Metropole Limited. Ultimately, the plaintiff had demonstrated that he had no further objections to the readjustment of the marker pegs of the boundary; and
       • ➢ At present, a new building is currently constructed on the adjoining land under Lease 8807 and any readjustment to the marker pegs will end up with the new building being encroached.

Issues for Determination

[353] As invited by the Court at hearing, Counsel helpfully submitted three issues for the Court’s determination:

• 353.1 Whether the second defendant’s decision to readjust the marker pegs to avoid encroachment was justified and lawful?;
• 353.2 whether the plaintiff suffered any material loss?; and
• 353.3 whether the first defendant suffered any material loss?

Orders Sought

[354] The second defendant seeks the following orders:

• 354.1 The plaintiff’s claims against the second defendant be dismissed;
• 354.2 Costs in favour of the second defendant; and
• 354.3 Any further order the Court deems just.
  

Issue: Was the change of the boundary justified and lawful?

[355] Learned Counsel submits that the circumstances clearly suggest that the plaintiff was well aware that a building was located on his land, which would cause encroachment if the original boundaries approved by Cabinet were implemented.
[356] In support of this, Counsel submits that the plaintiff during cross-examination admitted to the court that he was full of fully aware of the building already on the land at the relevant time. He states that when put to him the plaintiff denied that the original proposed boundaries would encroach the building.
[357] The Court notes that the passage of cross-examination referred to by Crown Counsel is but one example of numerous apparent contradictions in the plaintiff’s evidence before the Court, which made his evidence difficult to accept. It is observed that the plaintiff cannot have it both ways; either the existing building did encroach the potentially allocated land, or it did not. The Court has already found on the totality of the evidence as a matter of fact, that the building did encroach the other land.

Second Defendant Counsel on Mr Ma’ilei’s evidence

[358] Learned Crown Counsel referred to Mr Ma’ilei’s evidence that if he had not readjusted the boundaries and marker pegs, the building in the adjoining land would have been encroached.
[359] As has been pointed out elsewhere in this judgment, in a minority of Mr Ma’ilei’s surveys he had to readjust boundaries to avoid encroachment of buildings and only this one had been complained of.
[360] Counsel in covering the witness’ evidence that there were two sensible options in determining whether or not to readjust boundary pegs in encroachments:

• 360.1 First, a surveyor can choose to report back to the Minister regarding the details of the encouragement and await instructions;
• 360.2 Or secondly, which he testified had been a normal practice in the Ministry, is to use his own reasonable and sensible judgment, assess whether it is necessary to readjust the boundary pegs on site, and report back to the Minister.

[361] Counsel recalled Mr Ma’ilei’s rationale to exercise his own sensible judgment was that in order to preserve the Ministry's time and resource is it is better to re-adjust the boundaries and pegs than report back which often resulted in delays of weeks or sometimes months for a decision, delaying the other work scheduled.
[362] Mr Sisifa then covered Mr Ma’ilei’s evidence (CB 49) of the Minister’s 2012 direction to re survey the land and his report back (CB 104-105), outlining the survey conducted, the details, the area of the lease and importantly the technical problems he had encountered, in particular the obstruction of the boundary lines in the lease application on the existing building.
[363] Counsel submits at para 16 that plaintiff counsel is mistaken in her closing submission by claiming that Mr Ma’ilei had affected a change of boundaries when he carried out that 2012 re-survey. Mr Sisifa submits that Mr Ma’ilei was simply referring to redoing the survey and reporting his findings of the technicalities back to the Minister.
[364] On this point, the Court confirms it’s finding that in 2012 upon instructions from the Minister, Mr Ma’ilei using the Deed of Lease 7888 map, re-surveyed the boundaries and actual peg locations and duly reported back to the Minister. The Court recalls Mr Ma’ilei showing the 2010 survey map on CB 49A, which the Lease map contains, where the building was, the red line showing encroachment, explaining the proposed location, the changes made and new pegs as a result.

Mr Moala’s evidence

[365] Counsel recapped on salient parts of Mr Moala’s evidence (CB 45-47) including his references to Ms Stephenson's 30 May 2012 clear and detailed letter as FDL counsel to the Minister (CB 101-102) which was copied to the plaintiff’s lawyer, Mr Niu. FDL’s view was very clear, that they objected to any change of boundaries, if that change would affect their interests in the building in the land. He noted that in conjunction with the land, FDL had purchased the Roadhouse building then on the land, from the plaintiff’s other company, Vuna Development Limited.
[366] Counsel submitted that the plaintiff’s active involvement in the transactions of land and buildings means that he was fully aware that the lease complained about now was actually for the land his company’s building stood on.
[367] Mr Sisifa referred to Mr Moala’s evidence of the Ministry’s Mr Vea’s 18 June 2012 letter to the plaintiff’s lawyer explaining that ‘correcting’ by adjusting to the area specified in the 2009 lease application will definitely affect part of the building and that led Mr Ma’ilei to re-adjust the design of the area to be leased.
[368] Counsel submits that as a consequence:

“This proves that not only did the Ministry notify the plaintiff through his counsel of the change to the area of the lease, but they also gave a clear explanation as to why it had to be done.”

[369] Counsel reiterates Mr Moala’s evidence that in 2015 the plaintiff signed the lease application from himself to International Metropole Limited for the remaining part of his allotment. This was for the adjusted ‘L’ shaped 30 perches of land adjoining the 34 perch lot debated in this proceeding.
[370] As a result, Counsel invites the court to consider the two inferences to be drawn from that evidence:

• 370.1 First, the plaintiff was aware at all material times about the new boundaries to his lease,
• 370.2 Secondly, the plaintiff accepted these readjustments when he consented to the lease application from International Metropole Limited.

[371] He argues that it is simply not possible for landholder to say that he was not aware of the terms and conditions of his lease that he consented to. He says that there are documents, maps, detailed sketches and agreements that are before both parties before a lease is signed and registered. In those circumstances he submits that the plaintiff knew or ought to have known about the details of the lease application, including the new boundaries.
[372] Counsel mentions that during his evidence at trial and in the closing submissions filed on behalf of the plaintiff, he maintained that the reason he consented to the lease and 2015 was because an officer of the Ministry of Lands told him to proceed with it.
[373] Counsel says the second defendant “strenuously denies this allegation, and further states that the plaintiff has failed to provide any evidence to support his allegation.” He submits that the plaintiff acted upon his own free will and was well aware of the decision he was making at the time.
[374] The Court notes in the totality of the circumstances of the evidence before it, it is more likely than not that the plaintiff himself actually knew of the location of the building, that the approved proposed lease boundaries were subject to proper survey and that he knew what he was doing at the relevant times. Further, that even if he did not actually know, he ought to have known and taken advice from the lawyers he engaged.

Plaintiff’s case

[375] Mr Sisifa then made submissions on problematic aspects of the plaintiff’s evidence. He submitted that during his cross-examination of him on several of his own statements in his brief of evidence, (CB 42-44) the plaintiff was:

“.. either not aware, could not remember, or alleged that the Second Defendant’s witnesses were lying.”

[376] He mentions that during cross-examination about a letter from one of his previous lawyers regarding mortgage, the plaintiff claimed that he was not familiar with the document as he had just received it and that his lawyer did not understand the whole situation.
[377] Counsel submits that the plaintiff’s case centres on his allegation that the second defendant failed to ensure compliance with his directives of 22 June 2012.
[378] He submits that in observing the plaintiff’s responses to cross-examination questions, it was clear that the plaintiff was avoiding admitting that he was well aware of the encroachment on the existing building when that fact was obvious from the circumstances put forward to him by counsel.
[379] He contends that such avoidance of obvious circumstances and facts clearly suggests that the plaintiff was not being truthful with his evidence and therefore his evidence was “very doubtful”.
[380] In respect of Mr Ma’ilei’s complying with the Minister’s directives in 2012, Crown counsel says that he clearly did as evidenced in his report on CB 104-105.
[381] Counsel referred to plaintiff counsel’s question to the plaintiff as to why he wishes to ‘correct’ the lease, where the plaintiff answered that he wants to give the land to his children.
[382] Counsel submits in this regard that no land has been lost and the plaintiff can still carry out those wishes.

Abuse of process?

[383] Pointedly, Counsel notes with interest that the plaintiff only raised the survey boundary line is an issue after the management of his company, FDL was removed from him and given to the receiver by Westpac Bank (CB 102). The evidence is that on 29 July 2011, the Supreme Court ordered a receiver to take over FDL and its assets from the plaintiff. (CB91)
[384] The Court notes that this observation arose from Ms Stephenson's May 2012 letter, acting as she then was for FDL in receivership. She commented at the time that the plaintiff’s timing was peculiar because their dealings about the lease and the Roadhouse had already been done. She ended by saying of the plaintiff’s actions seeking boundary changes at this time that:

“His motives in doing so are clearly questionable and will, if necessary, be subject to formal legal challenge by FDL.”

[385] The Court has struggled through this case to understand what the plaintiff’s motivations are in pursuing a change of boundaries in these circumstances. Ms Stephenson’s letter suggests along those lines that the plaintiff had “questionable” motives. However, Ms Stephenson was not called to testify and the only matters we can rely on her having said was in her letter, based on her then being Counsel for a court-appointed receiver of the plaintiff’s former company FDL.
[386] Considering that background against the evidence before it, the pleadings and counsels’ submissions, the Court observes that given:

• 386.1 the lack of any apparent gain which a shift of boundary would achieve for the plaintiff; and
• 386.2 his stated lack of concern about whether or not either the first defendant or the other neighbouring lessee, IML or likely both would be prejudiced and in turn sue him if they had to protect their building investments on the land because of adjusted boundaries causing damage to their interests,
• 386.3 It appears possible that the plaintiff may actually want to risk everything in the present case in what might seem a ‘far-fetched’ desperate attempt to have the first defendant and IML forced to sue him to protect their interests, which might give him an opportunity to leverage or negotiate a settlement with them because the ‘stakes’ are elevated due to what appears to be a lot of money and time invested by them.

[387] If this is the case, and the Court is not saying it is, it would be an abuse of process to use the Court for what, if they were proven to exist, would be nefarious reasons indeed. This would be taken very seriously by the Court. If so, there would potentially be processes and proceedings initiated. In such circumstances a contempt of court would be a possible outcome because of the need to uphold the dignity of the Court and respect for the rule of law.
[388] However, having made these observations and with nothing of the sort having been actually alleged or proven, the Court does not deem it necessary for the purposes of completing this judgment to make particular findings on this aspect of the case.

Credibility of evidence

[389] Suffice for present purposes, in terms of the motivation to seek boundary changes during high pressure litigation and enforcement proceedings over very substantial amounts of money, the background factors raised in evidence and submissions may reasonably be taken into account in terms of weighing the credibility of witnesses and the consistency of their evidence.
[390] Veracity of the evidence in respect of what the law is and what each of the parties’ responsibilities are remains the focus of the Court.

Submissions on Law

[391] Learned Counsel referred to the decision of the Court in Kuli v Maile and Minister of Lands (LA 8 of 2019, 7 June 2019, per Niu J, Unreported), which although distinguishable on its facts, had similarities to the present case, concerning overlapping land lot boundaries.
[392] Applying His Honour Niu J’s reasoning and the context of that case in which the first defendant relied on much earlier surveys and installed boundary pegs to make his application for his ‘api, Crown Counsel sought to apply the rationale conversely to the present case. In this he submits that the plaintiff had an obligation to check the existing building’s location and availability of land before submitting his application to lease.
[393] Counsel quotes para [9] of Niu J’s judgment in Kuli v Maile:

“.. it is clear that the plaintiff and his siblings did not bother to check if the area on which they erected the dwelling house of their parents was available. Had they checked at the they would have found that the Minister had agreed to grant and had granted the adjoining land to the first defendant and it the survey pegs were already there in the ground to indicate that the area was still available for them to build on. But they did not.”

[394] Counsel therefore submits that the plaintiff should have checked with the Land Office to see exactly where the marker pegs were located while at the same time taking into account the erected building on the land, before submitting his application for lease.
[395] Learned Counsel also refers the Court to Helu v Helu LA 20 of 2007 (Paulsen P, Ruling 20 June 2017, Unreported), which is useful as in that case the issue of adjusting boundary pegs was raised because the plaintiff had built on land, knowing it belonged to the defendant in that case.
[396] The Land Court in the first Helu therefore ordered the Minister to amend the Deed of Grant of the ‘api in the same area as in the original allotment, but not to its original boundaries.
[397] Counsel then refers the Court to the ‘other’ decision, Helu v Helu [2017] Tonga LR 10, a case in which the plaintiff challenged the boundaries of the land and argued that the ruling of the Land Court was to restore the land to its original boundaries. He argued that this would remove the prejudice to him. The court commented at paras 70-71:

“... The Land Courts ruling is ambiguous. it is not at all clear whether the minister was required to restore Elipeni (the land) to its original boundaries or to its original area...”

71. At a practical level, even if Elipeni was restored to its original boundaries, that will not resolve the dispute between the parties. Viliami Jnr’s buildings will still be unlawfully on Sione's land and Sione may require them to be removed. An adjustment of the boundaries would likely cause further litigation to re-establish access from Sione’s land to Vaha’akolo Road. I cannot see that the plaintiffs will gain anything by this...”

[398] Not surprisingly, in that case the plaintiff’s claim failed.
[399] The Court also notes that the plaintiffs in that case did not plead losses, nor did they adduce evidence to prove any actual loss nor to even attempt to quantify such losses, which their counsel sought from the bar in closing submissions, to the “complete surprise” of the Court^[2].
[400] Therefore, neither was it any surprise that His Honour Paulsen P did not award those plaintiff’s compensation for unpleaded, unproven losses.
[401] At para 51, Mr Sisifa for the second defendant submits that if the rationale behind the Helu decision is applied, the present plaintiff’s claim should also fail because the plaintiff himself will not gain anything by having the boundaries re-adjusted. The size of the lot remains the same 34 perches applied for and approved by Cabinet before survey. And, as Counsel points out, re-adjusting the boundary pegs would mean destruction of the current building, which would result in even further litigation.

Has the Plaintiff suffered any loss?

[402] Counsel submits that when the plaintiff was asked in cross-examination whether he suffered any material loss due to adjustment of marker pegs, that he could not answer the question directly. Instead, he stated that he wanted to protect his land to ensure that the future of his children is secured.
[403] Counsel adds that the plaintiff added that he had spent a lot of money on numerous lawyers to handle this issue. However, Counsel submits that it was clear that his previous lawyers were only handling his mortgage with Westpac regarding his company, FDL. In so saying, effectively Mr Sisifa submits that in his testimony the plaintiff has conflated non-related, irrelevant considerations of costs from other cases into this case.
[404] The Court has already noted that the plaintiff’s current counsel is the third lawyer to have been engaged by him in these proceedings since July 2019. Yet, in terms of material losses arising from the allegations he makes about the boundaries of his leases, it is not logical for the Court to consider legal costs of litigation incurred by any party before determining whether or not his case as pleaded and any evidence he has adduced does in fact prove that he has suffered actual loss.
[405] Mr Sisifa submits that the plaintiff’s evidence or lack of it shows that he has not suffered any material loss in respect of his land, which he has not lost and which has retained the same area and overall boundaries.

[406] Counsel submits that the second defendant refutes the plaintiff’s para 15 pleading claims that it is in the ‘best interest’ of all parties to correct and re-grant with correct boundaries to that all parties’ investments are protected.
[407] He explains this by submitting that if the originally proposed boundaries were restored, the first defendant’s investments in the building he erected would have to be removed. This would inevitably lead to further litigation which Counsel submits the plaintiff does not even appear to have considered.

Has the First Defendant suffered any loss?

[408] Counsel notes the first defendant did not call any evidence and their counsel advised the Court that to date they have not suffered any material loss.
[409] He submits that in his evidence the plaintiff claimed that he had no issue with the first defendant. However during that cross-examination exchange, counsel for the first defendant did make it clear that re-adjusting the marker pegs back to the original proposed boundaries will affect the first defendant’s building, thus “opening the door to further litigation.”

Second Defendant’s reply to Plaintiff’s closing

[410] Learned Counsel notes that in closings the plaintiff is now seeking leave to delete his first prayer for relief. This was based on her misunderstanding of Mr Ma’ilei’s evidence was that he ‘corrected’ the boundary pegs for Lease 7888 when he re-surveyed in 2012.
[411] Counsel submits that Mr Ma’ilei never confirmed he had corrected the boundary pegs. Instead he says, Mr Ma’ilei merely stated during his evidence that he had gone to redo the survey as ordered by the Minister and reported his findings of the technical obstruction.
[412] He continues that the plaintiff misunderstood what both the Minister’s witnesses were saying about the processes and the timing of what was done by whom and when.
[413] A complication arose for example when in 2011 Mr Niu as the plaintiff’s former counsel, wrote to the Minister asking to defer any further work with the lease until the plaintiff’s appeal was determined by the Court of Appeal, which appeal was later withdrawn in 2012.
[414] Counsel continues at 64, 65 that:

“Therefore, the second defendant submits that the work could not be completed as the plaintiff had several cases in court throughout 2012-2015 regarding Lease 7888. At the conclusion of those cases the Ministry then preceded to return the boundaries to what Cabinet had originally approved only to find out that the plaintiff had transferred the lease to International Metropole Limited, with the same readjusted boundaries in place.

65. With respect to the plaintiff, his attitudes and actions clearly paint the picture that he had no issue with the boundaries, until it was brought up again in 2018 which ultimately led to his claim in the present case.”

[415] Counsel submits that although the plaintiff closings submit that due to the change of shape of lease, his interests in the land were affected, he has nevertheless failed to plead any particulars as to exactly how his interest in the land was or has been affected. He has only said that his loss includes money spent on lawyers.
[416] He submits that while the plaintiff’s previous lawyers were handling his previous cases, (Westpac v Fakafanua [2015] TOSC 38 and Fakafanua v Faua Developments Ltd [2015] TOCA 11) in respect of his company, FDL and its loan from Westpac bank, the boundaries of Lease 7888 were never an issue at the time.
[417] Challenging the plaintiff’s overall case, he submits that the fact that the plaintiff is not seeking any financial claim in this case is evidence that he suffered no material loss.

Plaintiff’s submissions in reply to the First Defendant

[418] Counsel for the plaintiff, Ms Tavo-Mailangi filed submissions in reply to both the first defendant’s and the second defendant’s closing submissions.
[419] Counsel notes that the first defendant opposed the orders sought by the plaintiff on the grounds that there was no communication of mistaken boundaries to the first defendant when the application for lease was made. She notes that at trial first defendant counsel raised the issue that any readjustment to the marker pegs would affect the first defendant’s building on the land.
[420] Counsel notes that the first defendant did not call any witnesses nor file any documentary evidence, but does not take that aspect any further until later.

Natural Justice Principles

[421] In para 3, Counsel accepts first defendant counsel Mr Edwards' point (she refers to first defendant’s closing, 3.3, 3.4, but the correct references in question are his paras 3.2 and 3.3) that the plaintiff had not pleaded a breach of the principles of natural justice in its claim or in the amended statement of claim.
[422] Mrs Tavo-Mailangi attempts to avoid the criticism of not having pleaded this category of breach, if the Court understands it correctly, by saying that the principles of natural justice arose from the second defendant’s defence that the plaintiff was aware of the changes to the boundary or that changes were necessary to protect the building that was on the land at the time.
[423] She continues that in his evidence, Mr Ma’ilei for the second defendant had confirmed that the plaintiff in fact was not aware of the changes to the boundary.
[424] Counsel submits that this raised the principle of natural justice and confirms the plaintiff’s evidence that he had not known until he found out in 2012, adding that the allegation of the plaintiff’s awareness was merely “based on the circumstances of the case”.
[425] Counsel concludes her rebuttal of Mr Edwards’ argument at his paras 3.2 and 3.3 that he “opposes any submissions made in reliance on the principles of natural justice and any alleged breach where there is no cause of action pleaded” in her closing paras 29 through 34.
[426] She rebuts by submitting that there is no real prejudice to any of the parties as her submissions on the principles of natural justice only focuses on the evidence during the trial. She requested that it be considered by the Court.
[427] The Court has considered her closing, Mr Edwards’ closing and her reply.
[428] First, Ms Tavo-Mailangi’s reply confuses the issues. Her reference to what she says Mr Ma’ilei gave his view about concerning the state of awareness of the plaintiff at any particular time is not compelling. In this regard it is not so much that her client has deviated from his pleadings, although this is problematic and counsel appearing for clients before the superior courts should know better.
[429] Railing against her efforts to have breaches of natural justice considered by the Court at this late juncture is that if she wished to rely upon it she should have raised it earlier and made an application to court and served it on the other parties. Or if indeed as she submits, it only arose at the time of hearing, she should have raised it then and we could have engaged in discussion at the time. This would avoid any prejudice accruing to the other parties. Earlier notice in pleadings might have also provided the other parties with due advance notice of such allegations, which they could then prepare for and advance in their own evidence or in cross-examination when the witnesses were before the court and not after hearing was concluded.
[430] The Court reminds Counsel that she is representing the plaintiff who raised this action against both defendants. It is incumbent upon a plaintiff to get their pleadings right from the start so that the defendants can properly and with due notice prepare their defences and in due course their evidence. That is a key threshold of fairness to the parties which must be met in order to protect the integrity of the Court’s process. This has not happened satisfactorily in respect of this category of Counsel’s closing, nor in her reply and accordingly the Court finds it is not bound to hear or consider the plaintiff’s submissions on the topic.
[431] Further, a party who advances ‘natural justice’ arguments must have their own affairs and details in order before arguing that others breach their rights. In this regard the Court has already found that the plaintiff himself failed to provide full disclosure concerning the building straddling the lease land he applied for in 2009, thereby undermining his ability to argue his rights under this heading.

Whether a proper cause of action is pleaded by the Plaintiff?

[432] Referring to the above titled section 4 of the first defendant’s closings, where he asks inter alia, “ - did the plaintiff when applying for the lease for Faua Development Limited, receive what he applied for?”, Counsel for the plaintiff replied.
[433] At her para 5, Counsel submits that he does plead a proper cause of action, “which the Plaintiff accepts is mainly against the 2^nd Defendant” as she states is in para 1 of the amended statement of claim as follows:

“The Plaintiff seeks declaration and order for specific performance for the boundary marker pegs of the land lease no. 7888 to be corrected to comply with the official marker pegs approved by both Cabinet and 2^nd Defendant.”

[434] Counsel further submits that:

“... the Plaintiff, when applying Counsel for the plaintiff ‘for’ [sic] the lease to Faua Development Limited (his company) did not receive what he in turn had consented to lease to Faua Development Limited in 2009.” [emphasis in original]

[435] She again refers to the “34 p (860m2)” area, the “specified boundary pegs” and the application “survey map contained at pages 53 of the Court Book.”
[436] She submits again that that survey map which accompanied the lease application was effectively approved by Cabinet and CD371 in 2009.
[437] In para 8, Counsel submits various points, including that the second defendant admitted in his statement of defence the plaintiff’s para 7 claim earlier referred to, containing said ‘boundary marker pegs’ as relied upon by the plaintiff.
[438] It appears that the fact of two of the five ‘boundary pegs’ are in fact boundary measurements mistakenly attributed boundary peg status and pleaded thus by the plaintiff also eluded Learned Crown Counsel.
[439] The Court has explained its finding that the plaintiff was mistaken in believing that his application to lease was complete or accurate at the time he made it. He failed to appreciate the fact that the lease the Minister had obtained Cabinet approval for was still subject to survey. He was of course also mistaken about the status of the set of so-called boundary pegs as he called them in his pleading. It is only for the purposes of clarifying the Court’s findings that they are repeated here in the context of the plaintiff’s reply.
[440] Regardless of what the plaintiff says the second defendant pleaded to in this respect, taking into account the uncovered mistakes, the plaintiff’s non-disclosure of the building and his own mistaken beliefs about the status of his rights at various stages have fundamentally unravelled his claim.
[441] Counsel’s submissions on second defendant’s admissions and his officials’ evidence are based on misconceptions of facts and speculation now, about what the Minister may or may not have done had he been informed either at the filing of the application or after the May 2009 survey are academic, given the status of the building encroaching then. The problem or at very least potential problem was not disclosed and the officials were forced to provide a solution. As the evidence developed it became clear that this adjustment procedure was an exercise of delegated authority; a common practice to retain area, protect buildings and avoid boundary encroachments.
[442] The Minister was handed a set of undisclosed problems by the plaintiff, which he then remedied and when the plaintiff later complained, he had the land re-surveyed which confirmed the encumbrance had been remedied. The remedy inflicted no harm on the plaintiff. Moving those boundaries in the manner sought by the plaintiff will no doubt cause harm to both the lessees. If so, then the plaintiff himself would possibly suffer harm if they choose to sue him rather than lose their investments.
[443] Considering Counsel’s para 22, the various letters and memoranda in 2012 and the Minister’s state of knowledge as expressed in his June 2012 Savingram, have been dealt with earlier in the ‘saga’ of this decision.
[444] In respect of the events after that, as already analysed and found, the Minister directed a survey of the land in accordance with s 24 of the Act and was satisfied with it.
[445] At para 24, Counsel for the plaintiff accepts that shifting the boundaries will impact on the first defendant because of the building it constructed. She then raises the fact that that building was built “many years after” the plaintiff complained about the boundaries. The submission continues that “... the plaintiff reiterates that the first defendant did not call any evidence or provide any documentary evidence to support the alleged adverse effect ...” for the “... considerable expense”, which Mr Edwards submitted at his paras 7.24 and 7.25 of closings.
[446] By way of analysis of the reply submission, first, the plaintiff accepts that a boundary shift will create an adverse impact on the first defendant because his new building would be encroached. The scale or cost in terms of money, uncertainty, or time, are matters of degree. The first defendant’s point is that he would suffer prejudice.
[447] Secondly, the fact that the first defendant built his structure many years after the plaintiff complained to the second defendant is irrelevant to the first defendant’s rights to be able to rely on the integrity of his leasehold title boundaries together with his right to improve it with a building.
[448] Thirdly, on the one hand the plaintiff himself accepted at hearing and in his legal submissions that the orders he seeks will impact on the first defendant, while on the other hand he criticises the first defendant for not calling any evidence to in effect quantify what kind of “alleged adverse effect” might be caused.
[449] The plaintiff cannot have it both ways; either he accepts that there is an impact and therefore prejudice would flow, caused by him, or there is not.
[450] Extending this line of argument even further, the plaintiff also complains about the first defendant making submissions about “alleged considerable expense” but not calling evidence of it.
[451] The Court together with the Learned Assessor discussed conducting a site visit of the property but decided against it in order to reduce the time and cost to the parties who had already incurred considerable expense. A part of our discussions included the location of the very large, five-storey steel superstructure which the first defendant had built on the land. We both knew the building and had not been able to miss it on Vuna Road due to its size and height. We also noted it is not yet completed, but without evidence about that we did not take the discussion further.
[452] In the context of the evidence in this case, Mr Edwards’ logic appears sound despite no specific evidence being called by his client.

Evidence of first defendant’s new building

[453] There exists evidence of the scale of the first defendant’s new building. On 30 November 2021 during hearing, Mr Ma’ilei produced into evidence a map which the Court assigned as Court Book page number ‘49B’, meaning it became an exhibit of his evidence in chief together with the 7 July 2010 pre-registration of lease map assigned as exhibit ‘49A’ which showed the post-survey land shaded and with a red line depicting the building encroachment he had discovered in his 2009 survey. Map 49A was discussed earlier in this decision and its boundary and pegs form the relevant part of registered Lease 7888. Mr Ma’ilei’s evidence was that he moved the boundaries to remove the encroachment shown on it.
[454] Map 49B was introduced by the witness and no party objected. Therefore the Court holds that it was admitted by consent.
[455] Mr Edwards cross-examined the witness about map 49B; how it showed his client’s new building and where it was located on the land. His line of questioning was that given the location of his client’s building on the land, when compared to the Lease map on Mr Ma’ilei’s survey map 49A, it showed the first defendant’s new building was not encroaching the neighbouring land (the plaintiff’s Lease 8807 to IML).
[456] Mr Ma’ilei agreed that the map 49B did appear to show that the new building did not encroach onto the neighbouring (Eastern) neighbouring land.
[457] Then Mr Edwards’s questions sought to establish whether or not, if the boundary was shifted Westwards to the original ‘red line’ on map 49A, as the plaintiff seeks orders for, would that cause an encroachment of the new building.
[458] In response Mr Ma’ilei said that he was not able to comment because he could not fully compare map 49A with the later map 49B. This was because he had not prepared the map 49B, which although it showed where the new building is located, it showed no survey marker pegs or definitive measurements. Mr Ma’ilei said he would have to make measurements of it himself so he could be sure of his answers. The Court notes that this was responsible and indeed proper professional surveyor practice by the witness.

Map 49B, the new building on the land

[459] In terms of what the Court can determine from it as evidence, map 49B has at its right top corner what appears to be an architect company’s bilingual letterhead which beneath a logo, in vertically printed English lettering reads, “Beijing Senleiyuan Planning and Architectural Design Co. Ltd” next to what appears to the Court to be vertical Chinese character writing of the same name.
[460] At the lower right-hand corner is an official blue stamp headed, “Ministry of Infrastructure, Building Service and Control Division”, beneath which appear the words, “Building Permit No. 2019/229, under which is some illegible text. Further below is a signature in blue pen of an unknown person, who has signed as “Building Controller” and dated it “14/11/19”. The Court notes that this appears to mean that the government’s Building Controller inspected this document, which appears from wording on it to be a “Top Level, Master Plan” on 14 November 2019.
[461] It is a large double A4 sized map of the site on which appears some design and building layout features. At the right hand side of the sketch map appears the text:

“The office building is located in the north of the Republic of Tonga with a total floor area of 3837.54 square metres.

The project has five floors above ground, including office, underground equipment room and supporting facilities. It is a second-class multi-storey building, and its fire-resistant grade is second-class.”

[462] Aside from the politically incorrect recitation of our beloved Kingdom as “Republic of Tonga”, the map provides the Court with some useful evidential detail about the size and scale of the first defendant’s new building. It is a five-story high building with map dimensions appearing to be 27 metres long and 27 metres wide, being a total of 729 square metres. Multiplied by 5 storeys, it is a 3,645 square metre building and the 192 square metre difference between that calculation and the 3837 square metres printed on the map (recorded above), would likely be the ‘underground equipment room’ it refers to.
[463] From this evidence the Court finds that this is a very substantial building indeed, even without needing to compare it in context to other buildings in Nuku’alofa. A finding that the first defendant has gone to considerable expense is not difficult given the evidence before it and despite the first defendant not calling evidence, nor raising the same in closings.
[464] Even without specific evidence on quantity surveys of building costs, materials, design experts, consultants, builders and other labour, the Court is duty-bound to consider and take judicial notice of such factors in its efforts to do justice to the parties. The Court finds as a fact that the first defendant has invested considerably in its building on the land.
[465] The Court is accordingly entitled to take proper judicial notice of those facts about the first defendant’s building.
[466] The Court is also cognisant that without completely demolishing the enormous five-story steel structure on the land and rebuilding it a few metres to the West, if at all that were possible, there is actually a simple solution to the issue for the first defendant.
[467] The solution is what the Minister had already provided in 2009 through the work of his surveyor. That was reconfirmed in 2010 and the final map and boundaries was registered as Lease 7888. The land was re-surveyed and the boundaries re-confirmed in 2012.
[468] Returning to the plaintiff’s reply submissions, the Court finds that to deny the first defendant his right to assert that prejudice, indeed that apparently “considerable prejudice” will accrue to him if the plaintiff receives the orders he is now seeking, would be unjust in the circumstances, just as such a shift of the building now would be ludicrous.
[469] In stark contrast, the Court finds that the plaintiff’s alleged, but still unquantified loss which he testified is the money he spent on lawyers and surveyors has not been credibly established and if at all, would only follow as costs in the event of his succeeding with his claim against the defendants.
[470] The Court finds that the plaintiff has not proven damage, nor prejudice arising from what he has claimed.
[471] To the contrary, the plaintiff’s claims, if they were to succeed would create considerable disruptions and harm to both the lessees of his land.
[472] The plaintiff is largely the author of his own misfortune. Whilst the Court has some sympathy for the difficulties many people complain of encountering in dealings with parts of His Majesty’s good government on occasion, citizens who seek the assistance of the official processes of government have a duty to provide all the relevant information required.
[473] His admitted failure to know where the buildings were on his own land and documentary evidence of his not disclosing that to the Minister commenced the series of ‘manoeuvres’ which the Court has had the unenviable task of understanding and to the extent possible, unravelling. Some remain unfathomable.

Plaintiff’s submissions in reply to the Second Defendant

[474] Mrs Tavo-Mailangi first summarises the second defendant’s closing which she replies to.
[475] Many of Counsel’s replies have been dealt with earlier, but where there remain submissions with nuances requiring analysis they are dealt with below.
[476] Counsel’s para 31 where she quotes the Minister’s 15 May 2009 Savingram instructions to officials omits a key word from his instructions. Whereas she quotes: “sketch the deed of lease approved...”, she has omitted the first two words of the sentence which reads: “Please survey and sketch the deed of lease..” (Court’s emphasis added).
[477] Counsel for the plaintiff is here over-emphasising her client’s simplistic view of the process that because Cabinet had approved the old sketch map he provided, it was the end of the matter. It was not. After survey work was completed “according to the map”, which map was a guide, the surveyors were “to sketch and prepare the Deed of Lease for registration”.
[478] Given the Court’s findings about the process and the plaintiff’s application, the Court emphasises again that any such application was subject to survey. It appears that this is a standard format savingram for such applications, as evidenced the plaintiff’s other application to lease his adjoining lot to International Metropole Limited in 2015 (CB 107), which instructions start with the exact same words: “Please survey and sketch ...”
[479] The plaintiff’s 1995 sketch map with the hand-drawn dotted line provided to the Minister was not ‘a forgone conclusion’ by any means.
[480] Counsel’s description of the second defendant’s evidence and the necessary and reasonable exercise of discretion by surveyors placed in an invidious position by the plaintiff’s lack of disclosure, should not later be blamed on the Minister.
[481] The Court has already made findings on the evidence and the process and find Counsel’s reply submissions unconvincing. They cannot exculpate ignorance of the condition of one’s own land, lack of disclosure to the Minister in an application. This was compounded by what appeared in the plaintiff’s testimony to be wilful avoidance of admitting knowledge in the face of clear contrary facts put to him, resorting to saying that some tasks were delegated, blaming other people and maintaining on other relevant matters that he knew nothing of things he ought to have.

Case Law Authorities and Analysis

[482] Plaintiff Counsel acknowledges in para 39 the Learned Solicitor-General’s submissions relying on rationale in the Kuli^[3] judgment and then seeks to deny it applying in the present case, relying on a number of arguments which the Court has already made findings on. The same can be summarised as follows in respect of the plaintiff’s reply, using her sub-para numbering:

(i) The plaintiff’s much-vaunted and mistaken reliance on his ‘boundary pegs’ and on his incomplete 1995 hand-amended sketch map attached to his 2009 application;

(ii) His failure in that application to disclose the location of the building on his land, which he did not check, nor even apparently measure before its construction or before preparing to apply to lease to his company;

(iii) His relying on incomplete information before leasing to his own company;

(iv) His inflated misconception of the nature of his own ‘consent’ to his own wishes being paramount, even when they were not based on full information which he could have obtained, but was not diligent in seeking and therefore did not provide to the Minister when applying to him for assistance, which was going to require a full survey before implementation and registration. The plaintiff mentions his children’s future interests but in fact he and they stand to gain nothing from a re-adjustment while others would suffer prejudice;

(v) The first defendant’s “currently erected building” appears to have actually been constructed on the land it leased, unlike the earlier one which in fact straddled both lots.

[483] Mrs Tavo-Mailangi seeks to rely on both the Helu^[4] judgments as upholding the rule in Koloamatangi^[5] as authority for the proposition that registrations of land are final and valid unless made as a result of “... a mistake or breach of the principles of natural justice.”
[484] Counsel seeks to rely on Helu without rebutting the earlier submission of defendant Counsel that the case is authority for the proposition that the Court will not visit prejudice on a third party by shifting boundaries, especially where the plaintiff will not gain anything by ordering a shift. In this regard the plaintiff’s submissions fail and the defendants’ are upheld.
[485] Similarly, Plaintiff Counsel submits nothing in reply to surmount the fact that her client knew well of the building on his property, yet did nothing to check whether or not its location would possibly affect the half-century lease he wanted to apply for and deal with. The evidence established that approximately 100 square metres of the building encroached, a very large area within an 860 square metre property. It was not a minor issue.
[486] Using the Court’s words in Kuli, the plaintiff “... did not bother to check if the area on which they erected the ... house was available. ... But they did not.”^[6]
[487] The logic is applicable in the present case. The plaintiff did have the means, time and should have had the diligence to have checked whether or not the land he wished to lease was available, unencumbered by the large building. But he did not.
[488] The Court prefers the defendants’ arguments arising from the evidence. In this regard the Court finds that given the circumstances and findings of facts, the Court accepts the application of the relevant authorities lead to the finality and validity of registration because the second defendant did not make a mistake.
[489] When the plaintiff complained to him in 2012, the second defendant made an interim finding and duly directed a further re-survey of the land, using the Lease 7888’s map, which re-survey confirmed that the boundaries were correct. There was no mistake.
[490] The Court has commented on communications in this case and with the greatest of respect, suggests that the second defendant and his officials review their communication procedures in such circumstances. However, this is to be tempered with the observation that in the context of frequent litigation and/or threats of litigation, some appear to be reluctant to correspond further than was done in this case; to acknowledge that there was a problem, its nature and that a re-survey and review was being done.
[491] The Court also holds that the Court of Appeal in Naulu v Tupou and Others [2016] TLR 163 at [13] is clear authority for the proposition that the Minister must make such enquiries as are reasonably necessary in view of the information before him to determine if the land is or may be subject to some other claim that might be an impediment to a grant (in this case a lease) or make it unavailable.
[492] In the present case, the Minister did make reasonable enquiries in May 2009 by directing a survey of the lease applied for March 2009. The information provided to him by the plaintiff turned out to be deficient.
[493] His senior surveyor, exercising what the Court finds to be a properly delegated authority from the Minister, carried out the survey, found a 100 square metre impediment built on the applicant’s other adjacent land and adjusted the boundaries to provide a solution. Upon the Minister directing a re-survey in June 2012 the same surveyor confirmed the earlier survey and obstructions and for the same reasons avoided the impediment, confirmed the boundaries, the peg locations and removed the problem.
[494] The Court notes here for clarity’s sake that the matter of Mr Ma’ilei exercising delegated authority is underpinned by his evidence of having conducted perhaps over two thousand surveys and having adjusted the boundaries on many hundreds of them, without complaint until now. His work was reasonable and practical in the circumstances, which benefitted and did not prejudice the plaintiff.
[495] The Court notes that the in the Helu judgment^[7] and although the factual scenario was acknowledgedly different, appositely for the present case, His Honour Paulsen P at [65] held:

“The law protects the interests of persons who in good faith and with permission of the holder ... occupy and develop land. It will guard against the manifest injustice that should such persons be dispossessed of their land without due inquiry.”

[496] This is such a case. The first defendant has made out that he is a bona fide purchaser of the lease land for good value. His rights must be protected by the Court in upholding the work of the Minister and his surveyor.

Did the Plaintiff suffer any material loss?

[497] For reasons discussed, the Court prefers the defendants’ submissions and does not consider that the plaintiff has proved that he has suffered material loss arising from the matters he claimed.
[498] The Court takes judicial notice of rentals payable to the plaintiff under the Deed of Lease 7888, although he himself did not mention it, nor the fact that upon expiry of the term the leased land and the neighbouring lot will revert to him or his heir.
[499] He claimed no material financial loss and has failed to prove any. In the circumstances neither does it appear that he will suffer loss in the future.
[500] Somewhat concerning, given the issues traversed in this case, Counsel submits at para 43 that:

“... the legal system is open to people to take matters to the courts on grievances which are not able to be resolved between parties and further litigation is inevitable for any party that wishes to pursue further any grievances as a result of the determinations respectfully made by the Court.”

[501] The Court finds that this is comment is unfortunately disengaged from the plaintiff’s own case shortcomings and his apparent beliefs of what he is entitled to at law.
[502] It is also disturbingly indifferent to the potential negative impacts on the first defendant and the neighbouring third party leasing, paying for and investing in improvements on his land. Whether or not it is either of these, or there is a more Machiavellian purpose as was seemingly ascribed to him by FDL’s lawyer in 2012, does not matter for the purposes of this decision. The plaintiff has failed to prove material loss.

Did the First Defendant suffer any loss?

[503] The Court has already made findings that despite the first defendant not calling any evidence, on evidence properly before the Court, he does appear to have invested considerable resources into building on his leased land.
[504] Although plaintiff Counsel raises it as not having been proven, the Court finds that the ‘extent of the loss’ by the first defendant is not the issue to be determined; it is the fact of their having valid, tangible assets and rights in the land which they have relied upon in making their investments. The plaintiff’s legal proceedings have imperilled those interests.
[505] Having been sued, the first defendant has responsibly, at his own cost, instructed Learned Counsel to attend the Court to confront, examine and provide submissions to protect his client’s interests in the face of the plaintiff’s seeking orders which if granted, threaten to harm its investment to a very considerable, albeit not quantified degree.
[506] Unlike the case with the plaintiff’s need to prove that he has suffered material loss, the Court is not required to quantify any material loss to the first defendant; it was not pleaded and is not necessary to do justice in this case.
[507] It is precisely the plaintiff’s threat of seeking orders to remove his reliable tenure that causes the first defendant to use the law as ‘a shield’ to protect itself. He has made out his case of prejudice to him if the orders sought are granted and that is enough for him to invoke the protective shield of the law.
[508] The Court has an overriding duty to do justice to the parties and in so doing to not cause prejudice, especially those who are without fault.

VII. RESULT

1. Orders
   

[509] The Court finds that on the evidence, for the foregoing reasons, no prejudice has accrued against the plaintiff due to the change of the shape of the lot leased as registered Deed of Lease 7888, the boundaries and boundary pegs recorded in which are found to be have been reasonably located due to the circumstances described in this judgment.
[510] Despite the plaintiff’s complaint that he has spent money on lawyers and surveyors and has lost opportunities which he did not provide evidence of, it was his choice to act in the way(s) he did. As ‘api holder it was his responsibility to provide and disclose full information to the relevant government departments at all relevant times. It was also his responsibility to understand his situation, to take professional advice and to bear the consequences of suing both defendants. The Court prefers the evidence of the defence witnesses and finds that he has not proven his case.
[511] The Court notes the breakdown in communications between the Minister of Lands, his officials and the plaintiff for a period and for reasons touched on in this decision, which may be idiosyncratic to this case, yet may bear consideration to remove these issues from arising again. Accordingly the Court respectfully requests that the new Honourable Minister of Lands take heed of the situation which arose in this case, review the procedures and take steps to ensure that such communication challenges are not repeated.
[512] In the circumstances of this case, for the reasons given the Court finds that the Minister of Lands has not erred in a manner which has caused prejudice to the plaintiff and no orders are necessary to recall or cancel Lease 7888.
[513] For the reasons given the plaintiff’s claims are dismissed.

2. Costs
   

[514] The Court orders costs against the plaintiff.
[515] The defendants are entitled to costs to be taxed by the Registrar, if not agreed within 21 days.

NUKU’ALOFA		Tu’inukutavake Barron Afeaki
4 August 2022		ACTING PRESIDENT OF THE LAND COURT

---

^[1] When asked by the Court during hearing how many surveys he had carried out, Mr Ma’ilei indicated probably two thousand. He testified that in his 40 years service as a Ministry of Lands surveyor, he had conducted ‘hundreds, close to a thousand’ surveys in which he had needed to adjust boundaries, but this case is the first time he had ever received a complaint about it.
^[2] Helu at [72]
^[3] Kuli v Maile and Minister of Land, LA 8 of 2019 (Niu J, Ruling 7 June 2019, Unreported)
^[4] Helu LA 20 of 2007 (Paulsen P, Ruling 20 June 2017, Unreported), and Helu [2017] TLR 17
^[5] Koloamatangi [2003] TLR 23
^[6] Kuli judgment, para 9, per Niu J
^[7] Supra, [2017] TLR 10, at [65], page 17